United States v. Pelayo Jose Cuervo , 354 F.3d 969 ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-2898
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United States of America, *
*
Appellee, *
*
v. *
*
Pelayo Jose Cuervo, also known as *
Jose Cuervo, also known as Pelayo Joe *
Cuervo, also known as Anthony *
Badessa, also known as Tattoo Joe, *
also known as Tattoo Badessa, *
*
Appellant. *
Appeals from the United States
District Court for the
Southern District of Iowa.
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No. 02-3196
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United States of America, *
*
Appellee, *
*
v. *
*
Robert Lee Norman, also known as *
Skunk, *
*
Appellant. *
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No. 02-3223
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United States of America, *
*
Appellee, *
*
v. *
*
Russell J. Schoenauer, *
*
Appellant. *
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No. 02-3362
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United States of America, *
*
Appellant, *
*
v. *
*
Russell J. Schoenauer, *
*
Appellee. *
___________
Submitted: October 23, 2003
Filed: January 22, 2004
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Before RILEY, HEANEY, and SMITH, Circuit Judges.
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HEANEY, Circuit Judge.
Appellants Robert Lee Norman, Russell J. Schoenauer, and Pelayo Jose Cuervo
were convicted of numerous narcotics and firearms offenses, many of which related
to what the government alleged to be a conspiracy to distribute controlled substances
that lasted from 1978 through 2001. Norman, Schoenauer, and Cuervo appeal their
conspiracy-related convictions, and Norman and Schoenauer appeal their resulting
sentences. Schoenauer further appeals the forfeiture of his property, and the firearms
convictions that were unrelated to the conspiracy. The government cross-appeals the
district court’s1 two-level downward sentencing departure for Schoenauer. We
affirm.
PROCEDURAL BACKGROUND
On March 28, 2001, a grand jury returned a multiple count indictment charging
the defendants and others with various narcotics and firearms offenses. The
government filed several superseding indictments, culminating in a fourth
superseding indictment filed on December 19, 2001. Through this voluminous final
charging document, the grand jury indicted Norman and Schoenauer for maintaining
a continuing criminal enterprise,2 and indicted all three defendants for conspiring to
distribute one thousand kilograms or more of marijuana, five hundred grams or more
1
The Honorable Robert W. Pratt, United States District Judge for the Southern
District of Iowa.
2
21 U.S.C. § 848.
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of methamphetamine, and five kilograms or more of cocaine.3 The defendants were
also charged with using firearms in furtherance of the conspiracy,4 as well as
numerous substantive counts of distributing controlled substances.5 Lastly, the
indictment sought forfeiture of several properties connected to the drug offenses, and
charged Schoenauer with three additional unrelated firearms offenses.6
Following a lengthy jury trial, the defendants were convicted of many of the
charged counts.7 Norman was convicted of maintaining a continuing criminal
enterprise and conspiracy to distribute five hundred or more grams of
methamphetamine, between five hundred grams and five kilograms of cocaine, and
between one hundred grams and one thousand kilograms of marijuana. He was also
convicted of nine substantive counts of distributing methamphetamine, and one count
of using a firearm in furtherance of the conspiracy. Cuervo was convicted of
conspiracy to distribute five hundred or more grams of methamphetamine, four
substantive counts of distributing methamphetamine, and one count of using a firearm
in furtherance of the conspiracy. Schoenauer was convicted of conspiracy to
distribute between fifty and five hundred grams of methamphetamine and between
one hundred grams and one thousand kilograms of marijuana, as well as two
substantive counts of distributing methamphetamine. The jury subsequently found
several of Schoenauer’s properties subject to forfeiture. Schoenauer was then tried
separately and found guilty of three counts of unlawful possession of a firearm.
3
21 U.S.C. §§ 846 and 841(a)(1).
4
18 U.S.C. § 924(c)(1)(A).
5
21 U.S.C. § 841(a)(1).
6
18 U.S.C. § 922(g)(9).
7
Other counts resulted in acquittals or were dismissed.
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Norman was sentenced to a term of 292 months imprisonment on the
continuing criminal enterprise count and seven of the distribution counts, to run
concurrently with a term of 240 months on another distribution count. He was also
given a 60-month consecutive sentence for his firearm violation, for a total prison
term of 352 months. Cuervo was sentenced to 210 months imprisonment for his role
in the conspiracy and his distribution convictions, as well as a consecutive 60-month
term for his firearm violation. Schoenauer was given a 210 month sentence for his
conspiracy and distribution convictions, to run concurrently with a 120-month
sentence for his firearms violations.
On appeal, the defendants make myriad arguments relating to their convictions
and sentences. Norman contends that his convictions cannot stand because: 1) the
indictment was unconstitutionally vague as to the continuing criminal enterprise and
conspiracy charges; 2) there was a variance in the proof and insufficient evidence to
support convictions for the continuing criminal enterprise and conspiracy charges; 3)
the district court erred in its response to a jury question; 4) the jury instruction for the
continuing criminal enterprise charge was improper; 5) the charges for using firearms
in furtherance of the conspiracy improperly charged multiple offenses, charged
continuing offenses, and violated the Ex Post Facto Clause; 6) his conviction for
using a firearm in furtherance of the conspiracy was for conduct beyond the statute
of limitations; and 7) his conviction for using a firearm in furtherance of the
conspiracy was not supported by sufficient evidence. As to his sentence, Norman
argues that the district court used the wrong version of the United States Sentencing
Guidelines, erred by enhancing his sentence under the theory that he supervised five
or more people, and erred in its drug quantity determination.
Schoenauer argues that: 1) the indictment was unconstitutionally vague as to
his conspiracy and drug distribution charges; 2) there was insufficient evidence to
support convictions on these charges; 3) there was a variance between the evidence
and allegations on his conspiracy and drug distribution charges; 4) the district court
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erred by admitting the government’s expert testimony on Schoenauer’s finances; 5)
the forfeiture verdicts were infected by myriad errors; 6) the convictions for unlawful
possession of a firearm cannot stand because the charging statute was
unconstitutionally vague as applied to Schoenauer; 7) the district court committed
reversible evidentiary errors during Schoenauer’s trial for unlawful possession of a
firearm; and 8) his convictions for unlawful possession of a firearm were not
supported by sufficient evidence. Lastly, Schoenauer contends that the district court
erred at sentencing in its drug quantity determination.
Cuervo joins Norman and Schoenauer in arguing the deficiency of the
indictment and evidence as to the conspiracy count. He further argues that his
conviction for using a firearm in furtherance of the conspiracy cannot stand because
his conduct was beyond the statute of limitations, there was a fatal variance between
the evidence and the indictment, and his conviction violated the Ex Post Facto
Clause. He further argues that he was prejudiced by being charged with multiple
firearms violations. Lastly, he claims that the evidence was insufficient to sustain his
four convictions for distributing methamphetamine.
The government cross-appeals Schoenauer’s sentence. It argues that the
district court erred by granting Schoenauer a two-level downward departure,
contending that the departure was based on improper or irrelevant factors under the
Guidelines.
FACTUAL BACKGROUND
This case reaches us following a jury verdict of guilty, and accordingly we
review the evidence in the light most favorable to the verdict, accepting all reasonable
inferences supported by the evidence. United States v. Kamerud, 326 F.3d 1008,
1012 (8th Cir. 2003). Robert Lee Norman and Pelayo Jose Cuervo were both
longstanding members of the same motorcycle club, the Sons of Silence. Norman
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was a charter member of the Boone, Iowa chapter of the club, joining in the late
1970s. Norman also owned an automobile repair and restoration business, Ballistic
Auto. Cuervo worked for Norman at Ballistic Auto. Russell J. Schoenauer was an
accountant by trade, but was also involved in numerous other business ventures.
Schoenauer performed tax preparation and other accounting services for Norman and
Ballistic Auto. As evidenced below, Norman, Cuervo, and Schoenauer were all
deeply involved in the use and distribution of controlled substances.
Norman married Marylin Corbin in 1978, and the couple remained married
until 1982. According to Corbin, Norman grew marijuana at their home throughout
the duration of their marriage, and also acquired marijuana from Steve Henry. At
least twice a month during their marriage, Norman would supply large quantities of
the drug to others, who would pay Norman for it at a later date–a practice known as
“fronting” the drug. Norman also manufactured a substance he referred to as “crank”
at their home during this time, and regularly carried a small pistol.
Rodney Backous testified that he had known Norman since at least 1982, and
that Norman had been involved in the distribution of controlled substances since
Backous met him. Backous would receive small quantities of marijuana and cocaine
from Norman, and when the drugs were available, Backous would supply Norman
with up to a pound of marijuana, and quantities as large as an ounce of cocaine
throughout the 1980s. For several years, Norman supplied Backous with one ounce
quantities of methamphetamine for resale, sometimes fronting the drugs to Backous.
Backous had seen Norman in possession of what he estimated to be $20,000 or
$30,000 in cash, and saw him count out over $12,000 in cash once when Norman was
trying to procure a pound of methamphetamine. In the mid-1990s, Backous was
present at a meeting between Norman and Schoenauer about Norman’s desire to
purchase methamphetamine. Norman advised Schoenauer that he needed money for
the purchase, but it is not clear if Norman was asking Schoenauer to personally fund
the transaction.
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Brian Holst was a member of the Sons of Silence from 1979 through the mid-
1980s, and had known Norman since 1978. He met Cuervo through the motorcycle
club in the mid-1980s. In the 1980s, Norman paid Holst to drive him to Colorado in
order to pick up cocaine and bring it back to Iowa. Holst had his own source for
methamphetamine in the southwest, and from 1992 through at least 1994, Holst
supplied one pound quantities of methamphetamine to Norman. In all, Holst
estimated that he provided Norman with fifteen to twenty pounds of
methamphetamine. Norman bought methamphetamine from Holst for a price of
$12,000 to $16,000 a pound and paid in cash. Holst saw Norman with approximately
$40,000 to $50,000 during one of these drug purchases. Holst also saw Norman and
Cuervo with firearms, but not during the drug transactions.
Mark McPherson was an original member of the Boone, Iowa chapter of the
Sons of Silence, and held the title of regional president for the club for roughly
thirteen years. He had known Norman since the 1970s, and Cuervo since
approximately 1980. On at least two occasions, McPherson and Norman pooled their
money to purchase large quantities of methamphetamine, once from Brian Holst, and
once from a Minnesota supplier. During his association with Norman and Cuervo,
he had observed them in possession of firearms.
Corey Pendarvis was also a member of the Boone, Iowa chapter of the Sons of
Silence motorcycle club. In 1992, Pendarvis traveled to Fort Dodge, Iowa and picked
up a pound of cocaine for Norman. A few times in the early 1990s, Norman arranged
to store his drugs–either cocaine or methamphetamine–at Pendarvis’s house before
selling them. Pendarvis testified that Norman would store up to a kilogram of
cocaine, but a considerably smaller portion of methamphetamine. Pendarvis further
testified that he had seen Norman in possession of firearms, as well as what he termed
as “a huge bag of pot.” (Trial Tr. Vol. III at 359.)
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According to Delane Evans, Norman began fronting cocaine to him in 1982.
Evans bought one-eighth ounce quantities approximately twice a week. After several
months, this increased to quarter ounce purchases, and eventually to one ounce
quantities of the drug. Evans acquired one ounce quantities of cocaine from Norman
on a regular basis for over a year. Years later, beginning around 1992, Norman began
selling methamphetamine to Evans. As with the cocaine, Norman fronted relatively
small quantities to Evans, progressing to one ounce quantities. Evans continued to
purchase methamphetamine from Norman for roughly four years. Evans also
purchased a quarter pound of marijuana from Norman on one occasion, and testified
that he observed firearms in Norman’s home.
Scott Gones knew both Norman and Cuervo from his association with the Sons
of Silence motorcycle club. Gones was a member of the club from approximately
1984 through 1999. He testified that Cuervo had a gun with him nearly everywhere
he went. In May of 1996, Gones was present when “Big John,” his associate in the
Paris, Illinois chapter of the Sons of Silence, brokered a deal to receive pound
quantities of methamphetamine from Norman. Through 1996, Norman provided at
least eight pounds of methamphetamine to Gones at a rate of $10,000 per pound.
Gones once picked up a two pound quantity of methamphetamine from Cuervo, also
for the price of $10,000 per pound. Both Cuervo and Norman fronted the drugs,
allowing Gones to pay at a later date.
According to Jewel Ulrick, he met Norman in the summer of 1995. The two
talked about drugs, and Norman asked if Ulrick could provide him with large
quantities of methamphetamine. Norman indicated that he could get money for drug
purchases very quickly from his accountant. Ulrick agreed to provide one pound of
methamphetamine, and Norman gave Ulrick $17,000 for the purchase. Ulrick was
not able to get the drug and eventually returned Norman’s money. Ulrick tried to get
methamphetamine for Norman one other time but was not successful.
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Kevin Hummel was a member of the Iron Horsemen motorcycle club, and first
started associating with Cuervo in 1996. Hummel often observed Cuervo carrying
a .380 caliber pistol, and sold Cuervo a .45 caliber handgun in 1997 or 1998. In late
1996 or early 1997, Norman approached Hummel about purchasing ten pounds of
methamphetamine from Hummel’s California source, offering Hummel $10,000 to
effectuate the transaction. Hummel rejected the offer.
In either 1990 or 1991, brothers Barry Scarcello and Daniel Burns began to
purchase cocaine from Norman. They usually purchased ounce or half ounce
quantities. These transactions happened every week or two weeks while the drug was
available. By early 1992, the brothers shifted their business to methamphetamine,
and started buying one or two ounces from Norman every week or two weeks. They
stopped buying from Norman in 1992 when Burns faced a criminal charge, but started
again in 1995, buying weekly from Norman until 1997. Sometimes Pendarvis
delivered the drugs to the brothers for Norman. According to Burns, Norman told
him that Schoenauer was his accountant and “money man,” (Trial Tr. Vol. IX at
1921), but did not elaborate on this relationship.
Chris Borst worked with Norman at Ballistic Auto. Drug customers would
occasionally stop by Ballistic Auto to pick up one ounce amounts of controlled
substances. Eventually, Borst was introduced to Schoenauer. Norman and Borst met
with Schoenauer several times in the 1990s, often discussing Ballistic Auto, but also
delving into the topic of drugs and drug money. Norman and Borst told Schoenauer
they were investing drug proceeds into Ballistic Auto, and Schoenauer suggested that
they buy money orders and then deposit them in Ballistic Auto’s bank account, giving
the impression that Ballistic Auto had a large stream of legitimate income. Norman
advised Borst to contact Schoenauer in the event of tax problems at Ballistic Auto.
Schoenauer was paid for his services in methamphetamine.
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Borst met Cuervo at Ballistic Auto in the summer of 1995, when Cuervo
dropped off a pound of methamphetamine for Norman. Norman sent Borst and
Cuervo on a trip to procure methamphetamine from an Illinois source, but the two
were unsuccessful. Before they left, Borst observed Norman hand Cuervo money for
the drug buy. During this trip, Cuervo carried a .38 caliber pistol.
Borst saw Norman with large amounts of cash, drugs, and weapons. He
specifically recalled seeing Norman in possession of two handguns and an AK-47
assault rifle. Norman sold Borst ounce quantities of methamphetamine on several
occasions in 1992. In 1994 and 1995, Norman gave Borst money to purchase
methamphetamine for Norman every two or three weeks. Eight to ten of these
transactions involved $8,000 in cash and half pound quantities of the drug. Borst also
picked up various amounts of methamphetamine for Norman at Norman’s trailer
home, and saw over a pound of methamphetamine at the trailer. He testified that he
picked up methamphetamine for Norman at other locations as well, including a
storage shed in which he saw up to five pounds of the drug. Borst estimated that he
handled over twenty pounds of methamphetamine for Norman. Once, Norman
directed Borst to count out money that was hidden in Norman’s house. The amount
totaled $93,000.
On one occasion, Borst traveled with Norman to pick up a 1967 Pontiac
Firebird in Colorado. A quantity of methamphetamine was hidden within the door
panels of this car, which Norman retrieved when he disassembled the door panels at
Ballistic Auto. Ballistic Auto was also used to dismantle the rear end of a vehicle
which had been used to store one pound of methamphetamine. Five pounds of
methamphetamine were recovered when Ballistic Auto was used to take apart the
transmission of a 1968 Chevrolet Impala, which had been hollowed out to store the
drugs.
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Joe Wetherby testified that he worked as a mechanic at Ballistic Auto from
1995 to 1999. While he worked there, Wetherby observed Norman in possession of
firearms, and stored Norman’s weapons for him at one time. Norman also regularly
sold Wetherby small amounts of methamphetamine and used Wetherby as a drug
courier. Twice Norman sent Wetherby to Kansas to pick up large quantities of
methamphetamine from Cuervo. On the first of these trips, Norman gave Wetherby
an envelope full of money for Cuervo, which Wetherby exchanged for drugs. On
Wetherby’s return, Norman retrieved the package and indicated that it contained five
pounds of methamphetamine. Wetherby’s second trip to Kansas involved the same
amount of methamphetamine, which he again delivered from Cuervo to Norman.
Wetherby saw Cuervo twice bring Norman similar packages at Ballistic Auto.
Cuervo carried a gun in his vehicle during these transactions. Through Wetherby,
Norman bought a twelve ounce quantity and a two ounce quantity of
methamphetamine from Phillip Gross. Gross verified that Wetherby bought
significant quantities of methamphetamine, which Gross would get from Las Vegas.
Wetherby told Gross that he was purchasing for his employer, presumably Norman.
Wetherby testified that on another occasion, Norman gave him $40,000 with orders
that Wetherby find and buy up to ten pounds of methamphetamine, but Wetherby was
not successful. During his tenure at Ballistic Auto, Wetherby came to know
Schoenauer. Norman introduced Schoenauer as Ballistic Auto’s accountant.
Wetherby remembered a time when Schoenauer shared a line of cocaine with him, but
did not recall Schoenauer being involved in any other drug activity.
Patrick Rinkert met Schoenauer when he started doing construction work for
Schoenauer in 1993. Eventually, the two formed a concrete business together, but
their business relationship ended in 1997. From 1993 through the spring of 1997,
Rinkert estimated that he received methamphetamine from Schoenauer ten or fifteen
times. Many times Schoenauer would deliver the drugs to Rinkert at construction job
sites, but Rinkert also received methamphetamine from Schoenauer at his office and
his house. Rinkert specifically recalled once receiving a small amount of
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methamphetamine from Schoenauer in the parking lot of Prairie Meadows casino in
January of 1997, and again at a construction site in March of 1997. Schoenauer
carried a nine-millimeter pistol with him during this transaction and on many other
occasions.
Norman introduced a fellow Sons of Silence member, James Pratt, to
Schoenauer in 1995. Pratt did maintenance and construction work on Schoenauer’s
properties, and eventually went into business with Schoenauer. From 1995 through
early 2001, Schoenauer provided Pratt with small amounts of methamphetamine,
often for no remuneration. Pratt estimated that during the course of their relationship,
Schoenauer supplied him with a total of twenty six to twenty eight ounces of
methamphetamine.
Lajean Johannes testified that she came to know Schoenauer from babysitting
his daughter. She cleaned Schoenauer’s apartment once in 1993, and Schoenauer
gave her $100 and a user quantity of methamphetamine and marijuana. She began to
frequent Schoenauer’s apartment more regularly in 1997, and Schoenauer provided
methamphetamine to Johannes during these meetings. Johannes testified that she saw
Schoenauer in possession of what she considered a large quantity of
methamphetamine at this time, estimated to be an “eight-ball.” (Trial Tr. Vol. VII at
1520.) Neither the prosecutor nor defense counsel asked Johannes to elaborate on
what measure she associated with an “eight-ball” of a controlled substance, although
other witnesses testified that it equated to one eighth of an ounce.
Marie Blunt testified that she had known Schoenauer for approximately eight
years, and during that time he had shared methamphetamine and marijuana with her
perhaps fifty times. She also often saw Norman with methamphetamine, which her
husband would buy from Norman.
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Jennifer Kent testified that Schoenauer used her escort service. She recalled
going to his office and using methamphetamine provided by Schoenauer. Schoenauer
paid for her services in both cash and methamphetamine.
Rick Elbert used Schoenauer as his accountant. On many occasions, Elbert
bought marijuana from Schoenauer, typically in one to four ounce quantities. Elbert
testified that Schoenauer once tried to get marijuana from the Sons of Silence, but
was unsuccessful.
During the 1990s, the defendants all had noteworthy contacts with law
enforcement. Iowa State Trooper Mike Winter effectuated a traffic stop on Norman
in 1994. A search of Norman and the motorcycle he was riding revealed two firearms
and a small amount of marijuana. South Dakota law enforcement officer Kevin Thom
arrested Cuervo during a motorcycle rally. Cuervo had over $4,000 cash on him,
which he claimed was for the possible purchase of vehicles for Ballistic Auto. Thom
confirmed this story with Norman, who suggested that Thom speak with Norman’s
tax accountant for further verification. Los Angeles, California officers Mark Wood
and Chris Christopher knew Cuervo from a traffic stop in September of 1997. A
search of the car in which Cuervo was a passenger revealed nearly $28,000 in cash
and a handgun. Again, Norman intervened and informed the officers that the money
was for the possible purchase of vehicles, and that the officers could verify his story
with Schoenauer. Schoenauer himself was stopped following a hit and run accident
in early 1999. A search of Schoenauer’s car and person uncovered a small amount
of methamphetamine and marijuana.
Brad Richards, a senior auditor with the Bureau of Alcohol, Tobacco, and
Firearms (ATF), testified on behalf of the government. Richards was offered as an
expert to establish that Schoenauer’s wealth exceeded his stated income. Richards
reviewed Schoenauer’s personal tax returns for the years 1992 through 1998, and
discerned that Schoenauer had a cumulative disposable income of $262,000.
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Richards estimated that during roughly the same period, Schoenauer’s investments
totaled nearly $2.9 million. He concluded that Schoenauer had about $2.6 million in
unexplained income for this time frame.
ANALYSIS
I. SUFFICIENCY OF THE INDICTMENT ON CONSPIRACY AND
CONTINUING CRIMINAL ENTERPRISE CHARGES
Norman argues that the fourth superseding indictment was unconstitutionally
vague with regard to the continuing criminal enterprise charges, and all three
defendants argue that the same holds true for the conspiracy charge, necessitating a
reversal of their respective convictions for those offenses. We review challenges to
the sufficiency of an indictment de novo. United States v. Dolan, 120 F.3d 856, 864
(8th Cir. 1997). Where a defendant does not attack the sufficiency of the indictment
before trial, however, “we apply a more deferential standard of review.” United
States v. White, 241 F.3d 1015, 1021 (8th Cir. 2001). Although Schoenauer
questioned the sufficiency of the indictment prior to trial, counsel for Norman
conceded at oral argument that he did not, and the record does not reflect that Cuervo
either did so personally or joined in a codefendant’s motion to that effect.8 Thus,
while Schoenauer enjoys the benefit of de novo review, we use less scrutiny in
considering Norman’s and Cuervo’s arguments. Notwithstanding our varying
standards of review for the defendants, we find no defendant is entitled to relief on
this ground.
8
Cuervo claims that he joined codefendant Steven Henry’s motion to dismiss
the indictment, but the record reflects that he did not file any document stating his
desire, and although he was present at the hearing on the motion with counsel for the
other codefendants, he neither participated in Henry’s argument nor informed the
court that he wished to join the motion. (See generally Oct. 26, 2001, Hr’g Tr.)
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Our review of the indictment for the continuing criminal enterprise and
conspiracy charges convinces us that they are not constitutionally deficient. “[A]n
indictment is sufficient if it, first, contains the elements of the offense charged and
fairly informs a defendant of the charge against which he must defend, and, second,
enables him to plead an acquittal or conviction in bar of future prosecutions for the
same offense.” Hamling v. United States, 418 U.S. 87, 117 (1974); see Dolan, 120
F.3d at 864 (“To be sufficient, an indictment must fairly inform the defendant of the
charges against him and allow him to plead double jeopardy as a bar to future
prosecution.”). Typically an indictment is not sufficient only if an essential element
of the offense is omitted from it. White, 241 F.3d at 1021.
In Count 1, the grand jury charged that Norman supervised, organized, or
managed five or more individuals, and in concert with them committed a series of
drug possession and distribution violations, obtaining substantial income as a result.
(Appellant Norman’s App. Vol. I at 2-3.) This closely tracks the language of the
statute defining the elements of a continuing criminal enterprise. See 21 U.S.C. §
848(c). Moreover, the indictment states the relevant time period, the place where the
crime was committed, and details the methods used to effectuate the crime. Count 2
of the indictment was similarly sufficient; it stated the relevant time period charged,
the place the crime had been committed, and the actors involved. It further charged
that the defendants, with others named and unnamed, conspired “to commit an
offense against the United States, namely to knowingly and intentionally distribute
controlled substances” including marijuana, cocaine, and methamphetamine.
(Appellant Norman’s App. Vol. I at 4.) This language adequately sets forth the
conspiracy charge. Moreover, Counts 1 and 2 of the indictment referenced the
continuing criminal enterprise and conspiracy statutes, respectively, and further
referenced relevant controlled substance statutes. See White, 241 F.3d at 1021(finding an indictment sufficient in part because of references to relevant criminal
statutes).
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In essence, the defendants argue that due to its vagueness, the indictment left
them without notice of what charges they would be defending against. We agree that
the indictment’s scope is broad, as it alleged crimes which continued for over two
decades and took place throughout the country, involving coconspirators both known
and unknown. The indictment was clarified by a Bill of Particulars filed by the
government on August 10, 2001. This document expounded on the allegations in the
indictment, providing the defendants with more specific information in order to assist
their defense. A Bill of Particulars is an appropriate vehicle for curing deficiencies
as to the form of an indictment. Dolan, 120 F.3d at 866-67. We find that the
defendants were adequately informed of the charges they faced, and thus affirm the
constitutionality of the indictment as to the continuing criminal enterprise and
conspiracy charges.
II. SUFFICIENCY OF THE EVIDENCE FOR THE CONTINUING
CRIMINAL ENTERPRISE, CONSPIRACY, AND RELATED DRUG
CHARGES
Norman argues that there was insufficient evidence to convict him of
maintaining a continuing criminal enterprise or conspiracy. Cuervo and Schoenauer
make the same arguments with regard to their conspiracy convictions. Cuervo further
challenges the sufficiency of the evidence for his four controlled substance
violations.9
We review the sufficiency of the evidence de novo. United States v.
Washington, 318 F.3d 845, 852 (8th Cir. 2003). Following conviction, we view the
evidence in the light most favorable to the government, giving the government the
benefit of all reasonable inferences that support the verdict. Id. “We uphold the jury
verdict if there is an interpretation of the evidence that would allow a reasonable jury
9
Schoenauer and Norman also challenge the sufficiency of the evidence for
their respective firearms convictions, which we address in a different section.
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to find the defendant guilty beyond a reasonable doubt.” United States v. Purvis, 114
F.3d 737, 738-39 (8th Cir. 1997). The “issue of witness credibility is virtually
unreviewable on appeal because it is ‘preeminently the job of the finder of fact.’”
United States v. Rayl, 270 F.3d 709, 713 (8th Cir. 2001) (quoting United States v.
E.R.B., 86 F.3d 129, 130 (8th Cir. 1996)).
A. Norman’s Continuing Criminal Enterprise Conviction
To sustain a conviction for maintaining a continuing criminal enterprise, the
government must present evidence that the defendant violated a felony controlled
substance law as part of a continuing series of three or more such violations; that he
did so through the concerted action of five or more people that he was supervising,
organizing, or managing; and that he derived substantial income or resources as a
result. 21 U.S.C. § 848; United States v. Jelinek, 57 F.3d 655, 657 (8th Cir. 1995).
Beginning in 1978, Robert Norman engaged in many drug transactions
involving marijuana, cocaine, and methamphetamine. There was direct evidence
tying Norman to purchases and sales of quantities of a pound or more of controlled
substances, and on some occasions as much as five pounds. At trial, the government
showed that Norman used Brian Holst, Joe Wetherby, Corey Pendarvis, Chris Borst,
and Cuervo as runners and intermediaries to buy and sell large quantities of drugs.
Moreover, reasonable inferences drawn from trial testimony indicate that Norman
may have maintained control over others as well, including Daniel Burns, Barry
Scarcello, Delane Evans, and perhaps Scott Gones. Contrary to Norman’s position,
the evidence does not merely show a series of discrete buyer/seller transactions.
Rather, it proved that he was involved in an extensive, long-term, concerted drug
trafficking scheme, often directing his subordinates to assist him with the
transactions. Norman was also linked to substantial amounts of cash through
personal observations of trial witnesses, indicating that Norman derived substantial
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income as a result of his drug dealings. As such, we find sufficient evidence to
sustain Norman’s conviction for maintaining a continuing criminal enterprise.
B. The Defendant’s Conspiracy Convictions
A conspiracy conviction will be upheld where the evidence shows that a
conspiracy existed for an illegal purpose, the defendant knew of the conspiracy, and
the defendant intentionally joined it. United States v. Oleson, 310 F.3d 1085, 1089
(8th Cir. 2002). In other words, the government must show an agreement between
at least two people, and that the agreement’s objective was a violation of the law.
United States v. Fitz, 317 F.3d 878, 881 (8th Cir. 2003). Evidence of a tacit
understanding to join the conspiracy will sustain a conviction, United States v.
Espino, 317 F.3d 788, 792 (8th Cir. 2003), but a defendant’s mere presence or
knowledge that someone else intends to sell drugs is not sufficient to convict him,
Fitz, 317 F.3d at 882.
As our factual recitation indicates, there is no question that the government
established a sweeping conspiracy to distribute marijuana, cocaine, and
methamphetamine over a several year period. It is also beyond dispute that Norman
was integrally involved in the conspiracy, buying and selling drugs as well as
directing others to do the same on his behalf.
We find the evidence similarly strong as to Cuervo’s involvement in the
conspiracy. Joe Wetherby testified that he twice picked up five pounds of
methamphetamine from Cuervo and delivered them to Norman. On other occasions,
Cuervo would bring similar packages to Norman at Ballistic Auto. Chris Borst saw
Cuervo deliver a pound of methamphetamine to Norman at Ballistic Auto in 1995,
and Cuervo joined Borst on a trip to buy methamphetamine for Norman. Having
established that a conspiracy to distribute controlled substances existed, this evidence
is more than sufficient to associate Cuervo with the conspiracy.
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With regard to Schoenauer, we are troubled by the conspiracy conviction. We
reiterate the government's burden at trial, which is to prove beyond a reasonable
doubt that Schoenauer was a voluntary and knowing participant in a specific
conspiracy. United States v. Desena, 260 F.3d 150, 154-55 (2d Cir. 2001); United
States v. Andujar, 49 F.3d 16, 22 (1st Cir. 1995). The jury found Schoenauer
conspired to distribute fifty to five hundred grams of methamphetamine, and only one
hundred grams or more of marijuana, rather than the one thousand kilograms alleged.
Granting the government the benefit of all reasonable inferences, we find the totality
of evidence against Schoenauer was sufficient to support the jury verdict.
Schoenauer was a regular user of controlled substances, favoring
methamphetamine and marijuana. On some occasions, Schoenauer obtained the
drugs from Norman. Schoenauer, in turn, provided user quantities of
methamphetamine and marijuana to his friends and associates on many occasions.
As accountant, Schoenauer offered financial advice regarding Ballistic Auto and
acted as Norman’s “money man.” There was no direct testimony that Schoenauer
shared in the profits from Norman’s drug sales, but testimony did reveal that
Schoenauer had significant untaxed income during some years of the alleged
conspiracy. The government argued to the jury, and contends before this court, that
the jury could infer from this testimony that Schoenauer participated in the
conspiracy. Schoenauer argues that he was nothing more than Norman’s accountant,
who used and distributed small quantities of drugs to friends and associates, and that
he did not invest in Norman’s drug activities or profit from them.
Initially, we note that there is no direct evidence of Schoenauer’s participation
in the conspiracy. Thus, the question before us is, could a reasonable jury have
inferred Schoenauer's participation from the evidence presented at trial? We do not
believe that the evidence with respect to Schoenauer’s drug use and sales is sufficient
to support the conspiracy conviction. Several times throughout the 1990s,
Schoenauer provided small quantities of methamphetamine and occasionally
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marijuana to others. Despite many transactions, Schoenauer did not typically accept
money for the drugs. Rather, he would usually give away user quantities of drugs or
trade them for services that benefitted him. There is no evidence that he obtained
these drugs from Norman with the understanding that he would redistribute them.
Nor is there any direct evidence that Norman shared in the benefits of Schoenauer’s
drug transactions. Under these circumstances, Schoenauer’s drug sales give little
support to the conspiracy conviction. Cf. United States v. Townsend, 924 F.2d 1385,
1391 (7th Cir. 1991) (“[T]he liability of members of the distribution chain is
predicated upon the notion that participants at different levels in the chain know that
the success of those at each level hinges upon the success of the others and therefore
cooperate for their mutual benefit.”). Instead, Schoenauer's drug transactions evince
discrete transactions unrelated to the conspiracy.
We likewise find unpersuasive the government’s argument that Schoenauer’s
role as accountant and financial advisor for Norman and Ballistic Auto proved his
participation in the drug conspiracy. The government’s principal witness on this
issue was Chris Borst. Borst testified that he met with Schoenauer several times in
an effort to ensure Ballistic Auto was “legitimate.” According to Borst, Schoenauer
gave a number of suggestions, none of which were illicit. When Schoenauer was
informed that Borst and Norman were investing drug money into Ballistic Auto, he
proposed a way for them to do so without raising suspicions. Clearly, this type of
advice could subject Schoenauer to liability for crimes such as conspiring to commit
money laundering or aiding and abetting money laundering. See e.g., United States
v. Vanhorn, 296 F.3d 713, 717-18 (8th Cir. 2002) (“The essential elements of a . . .
money laundering violation are proof that the defendant conducted a financial
transaction involving the proceeds of unlawful activity with knowledge that the funds
were proceeds of an unlawful activity and with the intent ‘to conceal or disguise the
nature, the location, the source, the ownership, or the control of the proceeds of
specified unlawful activity.’” (quoting 18 U.S.C. § 1956(a)(1)(B)(i)); cf. United
States v. Dugan, 238 F.3d 1041, 1043-44 (8th Cir. 2001) (finding evidence was
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sufficient to establish conspiracy to commit money laundering where defendant
knowingly concealed proceeds of drug activities). It does not, however, establish that
Schoenauer joined Norman’s conspiracy to distribute controlled substances; no
evidence suggested that Norman ever followed Schoenauer’s suggested approach, or
that money from Ballistic Auto was used to effectuate any further drug transactions.
Thus, we cannot say that Schoenauer’s limited advisory role with regard to Norman’s
financial affairs transformed him into a member of this overarching drug conspiracy.
Perhaps the strongest evidence that Schoenauer participated in Norman’s
extended operation in drug trafficking is the testimony of Daniel Burns, Jewel Ulrick,
and Rodney Backous. Burns told the jury that Norman referred to Schoenauer as his
“money man,” and Ulrick said that Norman told him he could get large sums of
money quickly from his accountant. Backous testified that he was present when
Norman asked Schoenauer to fund Norman’s purchase of methamphetamine. It is not
clear whether Schoenauer was investing in Norman’s enterprise or simply holding
Norman’s money for him. An expert government witness testified that Norman had
roughly $2.6 million in unexplained income during the period of the conspiracy,
testimony designed to create the inference that Schoenauer was investing in and
profiting from Norman's drug trafficking. Standing alone, this evidence would
probably not be sufficient to sustain the conviction. To hold that the safeguarding of
a client’s funds subjects the fiduciary to conspiratorial liability if those funds are used
for criminal means is simply too broad and sophistic a proposition to withstand
scrutiny.
When considering all the evidence against Schoenauer in its totality, however,
we believe a reasonable jury could find Schoenauer had participated in the
conspiracy. Schoenauer advised Norman on how to disguise drug proceeds as
legitimate business revenues. Moreover, there was consistent testimony that Norman
described Schoenauer as his source for money to effectuate Norman’s drug
transactions. Obviously, this would be a much stronger case if there was direct
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evidence that Schoenauer was investing his own money in the drug trafficking
enterprise. Again, though, the totality of evidence supports that inference, as the
government presented testimony that Schoenauer’s wealth did not match his stated
income for some years of the conspiracy. Although Schoenauer gave alternative
explanations for this wealth, in light of the circumstances, it was reasonable to infer
that the money was connected to the drug conspiracy. Accordingly, although the
government’s case was weak, we cannot say that Schoenauer’s conspiracy conviction
was unreasonable.
C. Cuervo’s Substantive Distribution Convictions
As Cuervo admitted at oral argument, his convictions for distributing
methamphetamine were established by trial testimony of government witnesses,
particularly Joe Wetherby. In arguing for reversal, he points us to Wetherby’s history
of drug use, prior convictions, plea agreement with the government, inconsistency
with other testimony, and failure to provide corroborating evidence. Each of these
matters is relevant only as to whether Wetherby was a credible government witness.
Time and again we have stated, and repeat so here, that “this court cannot review the
credibility of trial witnesses on appeal.” United States v. McCarthy, 244 F.3d 998,
1001 (8th Cir. 2001). Viewing the evidence in the light most favorable to the
government, we find it sufficient to sustain Cuervo’s substantive convictions for
distributing methamphetamine.
III. VARIANCE CLAIMS FOR CONTINUING CRIMINAL ENTERPRISE,
CONSPIRACY, AND RELATED DRUG CHARGES
Norman maintains that a variance existed between the allegations in the
indictment and the evidence presented at trial with regard to the continuing criminal
enterprise. Schoenauer and Cuervo join this argument as to the defendants’
conspiracy convictions. Schoenauer individually argues that there was also a
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variance between the allegations and the evidence in support of the two substantive
counts of distributing methamphetamine for which he was convicted. We review
claims of variances between the indictment and proof at trial to determine if the
variance substantially prejudiced the defense. United States v. Ghant, 339 F.3d 660,
662 (8th Cir. 2003); United States v. Stuckey, 220 F.3d 976, 981 (8th Cir. 2000)
(explaining that a variance only results in a reversal if the defendant’s right to notice
of the crimes charged has been infringed).
A variance exists when the evidence at trial establishes a different set of facts
than those contained in the indictment. Dunn v. United States, 442 U.S. 100, 105
(1979); United States v. Koen, 31 F.3d 722, 724 (8th Cir. 1994) (“A variance occurs
when the charging terms are left unaltered but the evidence offered at trial proves
facts different from those alleged in the indictment.”). A claim of a variance alleges
constitutional error, for it pertains to a defendant’s Sixth Amendment right to be
adequately informed of the nature of the charges. Stuckey, 220 F.3d at 981. A
defendant is only entitled to relief, however, if the variance does, in fact, infringe on
his substantial rights. Ghant, 339 F.3d at 662; United States v. Mora-Higuera, 269
F.3d 905, 911 (8th Cir. 2001).
A. Continuing Criminal Enterprise and Conspiracy
The defendants contend that the government failed to prove a single conspiracy
or continuing criminal enterprise, but rather presented evidence of simple buyer/seller
transactions or smaller conspiratorial agreements to procure and distribute drugs.
“Whether the government’s proof established a single conspiracy or multiple
conspiracies is a question of fact for the jury.” United States v. Morales, 113 F.3d
116, 118 (8th Cir. 1997). When a claim of variance involves a conspiracy or
continuing criminal enterprise conviction, we will reverse only if “the evidence does
not support the single conspiracy and the defendant was prejudiced by the variance
-24-
between the indictment and proof.” United States v. Pullman, 187 F.3d 816, 821 (8th
Cir. 1999).
As discussed above, we are persuaded that the evidence presented here, taken
in the light most favorable to the government, proved more than simple buyer/seller
transactions. The defendants suggest that the jury verdicts on the conspiracy charges
support their contention that the government may have proved several small
conspiracies, but did not show a single conspiracy to distribute drugs over two
decades. The jury found each of the defendants guilty of conspiring to distribute
controlled substances, but differed as to which controlled substance each defendant
was responsible for: Norman was found guilty of conspiring to distribute marijuana,
methamphetamine, and cocaine; Schoenauer was found guilty of conspiring to
distribute marijuana and methamphetamine; and Cuervo was found guilty of
conspiring to distribute methamphetamine only.
Having reviewed the record, we cannot agree with the defendants. Consistent
with the jury verdicts, the government presented evidence that connected Norman to
a lengthy scheme to distribute numerous controlled substances. Simply because the
jury found that Cuervo and Schoenauer’s roles in the conspiracy involved different
drugs does not direct the conclusion that there were multiple conspiracies. See
United States v. Cabbell, 35 F.3d 1255, 1262 (8th Cir. 1994) (holding that a jury
finding of a single conspiracy was not precluded by evidence that coconspirators
entered the conspiracy at different times and assumed different roles). This is
particularly true because the jury was properly instructed that the government was
required to prove the defendants were members of the alleged conspiracy, not
members of some other conspiracy. Even if the defendants were able to establish that
the evidence proved multiple conspiracies, however, they have not shown how they
were prejudiced by the purported variance. The jury findings were consistent with
the indictment, as they convicted each defendant of conspiring to distribute controlled
substances within the relevant statute of limitations. As noted above, we find the
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indictment, together with the Bill of Particulars, provided the defendants with
sufficient notice of the allegations against them. Certainly, in a complex case
involving multiple defendants conspiring to distribute several different drugs over
two decades, there is cause for concern that a single defendant may be prejudiced by
evidence unrelated to his role in the conspiracy. Ghant, 339 F.3d at 662 (noting that
a defendant may be prejudiced by the “spillover” of evidence from one conspiracy to
another). Indulging the defendants’ argument that the government proved several
conspiracies rather than a single one, however, we fail to see how they were
prejudiced. Indeed, if anything, the jury verdicts–finding each defendant guilty of
conspiring to distribute different combinations of drugs–reflect a resolve on the part
of the jury not to allow the so-called “spillover” of evidence to affect its verdicts.
Rather, the jury found each defendant guilty for his respective role in the conspiracy.
We thus find no prejudicial variance between this portion of the indictment and the
proof at trial.
B. Schoenauer’s Substantive Distribution Convictions
Schoenauer was convicted of two substantive counts of distributing
methamphetamine, in violation of 21 U.S.C. § 841(a). The first of these, Count 8,
charged him with distributing methamphetamine “[o]n or about Spring of 1996,”
(Appellant Norman’s App. Vol. I at 12), and the second, Count 46, alleged
methamphetamine distribution “[i]n or about 1997,” (Id. at 52). The Bill of
Particulars clarified that Count 8 was based on conduct occurring at a construction
site, and Count 46 was alleged to have occurred in the Prairie Meadows casino
parking lot. The evidence for both counts came from Patrick Rinkert, who testified
that Schoenauer provided him with methamphetamine in the Prairie Meadows casino
parking lot in January of 1997, and again at a construction site in March of 1997.
Schoenauer claims error in that the evidence showed that the distributions happened
on different dates, and in a different order, than as the government alleged.
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“A variance between the date set forth in the indictment and the proof at trial
is not fatal as long as the acts alleged were committed within the statute of limitations
and before the date of the indictment.” United States v. Harris, 344 F.3d 803, 805
(8th Cir. 2003). Here, the proof presented showed that both distributions to Rinkert
occurred in 1997, rather than in 1996 and 1997. Moreover, the indictment specified
that the dates given were approximations, as they did not allege a date certain and
prefaced the time given with a statement that the dates were estimated. We could
conceive of prejudice arising from the fact that the indictment alleged that Count 8
occurred before Count 46 whereas the proof showed just the opposite, but Schoenauer
has not specified how he was adversely affected as a result of this variation. In the
absence of such a showing, Schoenauer is not entitled to relief. Id.IV. FIREARM USE IN FURTHERANCE OF THE CONSPIRACY
The defendants were charged with multiple violations of 18 U.S.C. §
924(c)(1)(A). Pursuant to § 924(c)(1)(A), if a defendant used, carried, or possessed
a firearm in furtherance of a drug trafficking offense he is subject to an additional
consecutive term of imprisonment. The evidence showed that both Cuervo and
Norman possessed guns at some point during the drug conspiracy, and they were thus
convicted on direct and vicarious liability theories.10 On the government’s motion,
the court dismissed the vicarious liability convictions, leaving Norman and Cuervo
each with only a single § 924(c)(1)(A) conviction and an additional sixty month
consecutive sentence as a result.
A. Multiple § 924(c)(1)(A) Charges
Norman and Cuervo contend that it was error for the district court to allow the
government to charge multiple § 924(c)(1)(A) violations. We disagree. In United
10
Schoenauer was acquitted of these gun charges.
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States v. Freisinger, 937 F.2d 383, 390 (8th Cir. 1991), our court held that the
language and legislative history of § 924(c)(1)(A) supported the view that a defendant
could be convicted under § 924(c)(1)(A) for each gun in his possession.11 We thus
held that the defendant’s possession of four guns in furtherance of his drug trafficking
offense supported convictions for four separate § 924(c)(1)(A) violations. Similarly,
Norman’s and Cuervo’s multiple § 924(c)(1)(A) counts here were based on distinct
conduct–Norman’s gun use, and Cuervo’s gun use. Each was charged with
responsibility for their own conduct, as well as vicariously for the conduct of one
another. See generally Pinkerton v. United States, 328 U.S. 640, 646-47 (1946)
(holding partner in crime may be vicariously liable for acts of another in furtherance
of the unlawful project). Given the unaltered rule of Freisinger, we find no error in
the multiple § 924(c)(1)(A) charges.12
Cuervo next argues that there was a fatal variance between the charging
documents and the jury instructions. In the indictment, he was alleged to have used,
carried, and possessed a firearm in furtherance of the drug offenses, but the jury was
instructed they could find him guilty if the evidence showed that he used, carried, or
possessed a firearm. We do not believe Cuervo’s substantial rights were prejudiced
as a result of this grammatical difference. See United States v. Moore, 184 F.3d 790,
793-94 (8th Cir. 1999) (finding no error where defendant was indicted for conspiring
to distribute cocaine and marijuana, but convicted following a jury instruction on
conspiring to distribute cocaine or marijuana because change “did not expand the
11
Freisinger recognized that other circuits had held that even possession or use
of multiple firearms in furtherance of a crime will only support a single
§ 924(c)(1)(A) conviction. See Freisinger, 937 F.2d at 389-90.
12
Even if Freisinger were not the rule of our circuit, Norman and Cuervo have
failed to show any prejudice, since the government voluntarily dismissed all but one
of the § 924(c)(1)(A) counts against each of them. Thus, even though they were
charged and found guilty of multiple violations, as it stands each only has a single
§ 924(c)(1)(A) conviction.
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bases upon which [the defendant] could be convicted”). The variance here did not
materially alter the offense for which Cuervo was charged, and, in the absence of
prejudice, he cannot prevail on this ground.
B. Ex Post Facto and Statute of Limitations Issues
Norman and Cuervo further argue that they were convicted under
§ 924(c)(1)(A) in violation of the Ex Post Facto Clause and beyond the statute of
limitations. Because neither raised these issues below, we are constrained to review
these issues for plain error. United States v. Olano, 507 U.S. 725, 731-34 (1993).
Both Norman and Cuervo contend that § 924(c)(1)(A) is not a continuing
offense, but rather a so-called “point-in-time” offense. If that were the case, the
government would have to show that Norman and Cuervo actually possessed, carried,
or used guns within five years from the time the charge was brought to satisfy the
statute of limitations. Moreover, because § 924(c)(1)(A) was amended in 1998 to
include possession among the prohibited activity, Norman and Cuervo contend that
the government must show that, prior to the amendment, they did more than merely
possess a gun in furtherance of the conspiracy. The government responds that
§ 924(c)(1)(A) is a continuing offense, (i.e., if a gun is possessed once during the
term of the conspiracy, the § 924(c)(1)(A) crime continues until the underlying
conspiracy ends), and thus the statute of limitations and Ex Post Facto Clause are not
implicated. The government further contends that, even if § 924(c)(1)(A) is a point
in time offense, it was not plain error for the district court to hold to the contrary, and
with regard to Cuervo, evidence still supports his conviction under his proffered
construction of the statute.13
13
The government concedes that no evidence links Norman directly to
possession, use, or carrying of a firearm within the last several years.
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We find guidance in the Supreme Court’s decision in United States v.
Rodriguez-Moreno, 526 U.S. 275 (1999). In Rodriguez-Moreno, the Court was faced
with the issue of the proper venue for a § 924(c)(1)(A) offense. The defendant had
kidnaped an enemy in New Jersey, and brought him to Maryland. Once in Maryland,
the defendant brandished a firearm in furtherance of the kidnaping. The government
conceded that there was no evidence the defendant used the gun in New Jersey.
Nonetheless, the trial was venued in New Jersey, and the defendant was convicted.
On appeal, he argued that the proper venue for the § 924(c)(1)(A) violation was
Maryland, the only place he had used the gun. The Supreme Court agreed that the
venue should be the place where an act making up part of the crime took place, id. at
279, but went on to hold against the defendant. The Court reasoned that the
§ 924(c)(1)(A) offenses have two basic elements: 1) the carrying, possession, or use
of a firearm, and 2) the underlying offense that the carrying, possession, or use of the
firearm is furthering. Id. at 280. Thus, § 924(c)(1)(A) could not be classified as a
point-in-time offense because its nature depended on the underlying crime; if the
underlying crime was a continuing offense, then so was § 924(c)(1)(A). Id. at 281.
The underlying crime before the Court was a kidnaping, which continued until the
victim was released. Thus, venue of the § 924(c)(1)(A) offense was proper anywhere
that a portion of that crime, including the kidnaping, took place. Id. at 282 (“Where
venue is appropriate for the underlying crime of violence, so too it is for the
§ 924(c)(1) offense.”).
Applying the tenets of Rodriguez-Moreno, we find no statute of limitations or
Ex Post Facto violations. One of the elements essential to a § 924(c)(1)(A) violation
is the underlying crime. The statute of limitations for the violation does not begin to
run until elements comprising the violation, including the underlying crime, have
ceased. Rodriguez-Moreno, 526 U.S. at 281-82. The government presented evidence
that the underlying crime in this case–the drug conspiracy–continued from 1978
through 2001. Thus, even though the defendants actually possessed the guns at
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earlier points, the § 924(c)(1)(A) offenses continued to occur until the end of the
conspiracy.
C. Sufficiency of the Evidence
Norman also claims that the evidence was insufficient to convict him of the
§ 924(c)(1)(A) offense. Although he admits to possessing a firearm, he directs us to
the government’s failure to directly link his firearm possession to the conspiracy. To
sustain a conviction, the government must present evidence that the defendant used,
carried, or possessed a firearm in furtherance of a drug trafficking offense. 18 U.S.C.
§ 924(c)(1)(A).
There is no question that Norman often possessed firearms during the course
of the conspiracy. During a 1994 traffic stop, he was found in possession of two
guns. Moreover, Marylin Corbin, Brian Holst, Mark McPherson, Corey Pendarvis,
Delane Evans, Chris Borst, and Joe Wetherby all observed Norman in possession of
firearms. Notably, each of these witnesses was also involved in drug dealings with
Norman. Some, such as Wetherby and Holst, did not directly connect the firearms to
their drug transactions.
Given the record before us, we do not believe Norman could be convicted of
“using” the firearm in furtherance of the conspiracy, for that would require proof that
he actually employed a gun in furtherance of the crime. Bailey v. United States, 516
U.S. 137, 144 (1995). While simultaneous possession of both guns and drugs alone
does not establish possession of a firearm in furtherance of the drug conspiracy,
proximity of firearms to drugs may “support an inference that the firearms were
possessed so as to be readily available to protect the drugs.” United States v.
Hamilton, 332 F.3d 1144, 1150 (8th Cir. 2003).
-31-
Although a close case, there is sufficient evidence to convict Norman of
possessing firearms in furtherance of the drug conspiracy. We are troubled by the
failure to directly connect Norman’s firearm possession to his drug activities.
However, the breadth of the conspiracy, the fact that the firearms were often in the
same location as the drugs or where the transactions originated, and the consistent
testimony from those involved in drug transactions with Norman that he possessed
firearms, we find no error in the jury’s determination that Norman’s possession of
weapons overlapped with and furthered the aim of his drug transactions.
V. EXPERT TESTIMONY OF SCHOENAUER’S WEALTH
Schoenauer contends that the district court committed reversible error by
allowing Brad Richards, an auditor with the ATF, testify as an expert to establish that
Schoenauer’s wealth exceeded his income. Richards considered Schoenauer’s tax
returns from 1992-98 and compared the income and revenue figures to financial data
from the same period that Schoenauer had submitted to a bank for loan transactions.
Richards submitted that, during that period, Schoenauer’s investments totaled roughly
$2.9 million, while his available income was only $262,200. He concluded that
Schoenauer thus had about $2.6 million of unexplained income for those years.
Schoenauer now argues that it was prejudicial error for the district court to admit the
testimony of Richards. The government contends that the evidence was properly
admitted, and, even if it was erroneously admitted, the error was harmless.
We review the district court’s decision to allow expert testimony for an abuse
of discretion. United States v. Kehoe, 310 F.3d 579, 593 (8th Cir. 2002). To be
admissible, expert testimony must be both relevant and reliable. Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 147 (1999). There is no question that Richards testified
on a relevant matter; he spoke directly to the issue of money that the government
alleged was derived from the drug conspiracy. As to reliability, Schoenauer contends
that Richards’s testimony did not conform to the standards applicable in tax
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prosecutions. Under that standard, the so-called “net worth method” of proving
unaccounted for income, the government must: 1) establish an opening net worth; 2)
investigate leads of potential income sources, and 3) show that increases in net worth
are attributable to unexplained income. See Holland v. United States, 348 U.S. 121,
132-38 (1954). The government responds that the method explained in Holland is
only required in tax prosecutions, not drug cases.
We have found no clear precedent in our circuit on the issue of whether
Holland applies to non-tax cases. The Second Circuit and Eleventh Circuit have held
that Holland does not apply to drug cases, see United States v. Falley, 489 F.2d 33,
40 (2d Cir. 1973) and United States v. Gonzales, 21 F.3d 1045, 1048 (11th Cir. 1994),
and the Sixth Circuit has intimated that Holland would not apply in a bank theft case,
see United States v. Vannerson, 786 F.2d 221, 223 (6th Cir. 1986). We agree with
those circuits that Holland should not strictly apply in non-tax cases. In tax
prosecutions like Holland, a stringent standard is necessary because the crime in tax
cases includes financial gain as an element. When the government is seeking to prove
an element of the offense exclusively by expert testimony, a district court should hold
the government to a strict standard for admitting that evidence. Accord Falley, 489
F.2d at 40. However, financial gain is not an element of any of Schoenauer’s offenses
of conviction.14 Thus, we find no reversible error in the district court’s decision to
allow Richards to testify as an expert regarding Schoenauer’s wealth.
14
We may have a different view if Schoenauer was, in fact, convicted of
maintaining a continuing criminal enterprise, for that crime requires proof that the
defendant gained substantial income or resources as a result of the scheme. See 21
U.S.C. § 848(c)(2)(B).
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VI. JURY INSTRUCTIONS FOR NORMAN’S CONTINUING CRIMINAL
ENTERPRISE CONVICTION
Norman argues that the jury instructions on the elements of a continuing
criminal enterprise were wrong and warrant reversal. Because Norman did not object
to the instructions at trial, we review for plain error. United States v. Hall, 325 F.3d
980, 981-82 (8th Cir. 2003). Under this standard, we reverse only if the error affected
the defendant’s substantial rights, and a miscarriage of justice would result if the error
were left uncorrected. Id. at 982.
“To support a [continuing criminal enterprise] charge, the government must
prove ‘the commission of a continuing series of violations of federal narcotics law,
in concert with five or more persons, by a person occupying a management or
organizing position, who receives substantial income therefrom.’” United States v.
Rockelman, 49 F.3d 418, 420 (8th Cir. 1995) (quoting United States v. Becton, 751
F.2d 250, 254 (8th Cir. 1984)). In this case, the district court did not instruct the jury
that its verdict must be unanimous with regard to the people Norman was alleged to
have supervised. He argues that the failure to give such a unanimity instruction was
plain error.
Norman concedes that “[p]rior Eighth Circuit authority holds that specific
unanimity as to the group census element is not required in order to establish a
[continuing criminal enterprise] violation.” (Appellant Norman’s Br. at 27 (citing
United States v. Jelinek, 57 F.3d 655, 658-59 (8th Cir. 1995) and United States v.
Rockelman, 49 F.3d 418, 421 (8th Cir. 1995))); see also United States v. Montanye,
962 F.2d 1332, 1341 (8th Cir. 1992), cited with approval in reh’g en banc, United
States v. Montanye, 996 F.2d 190, 194 (8th Cir. 1993). He nonetheless urges us to
reconsider our prior precedent in light of United States v. Richardson, 526 U.S. 813(1999).
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In Richardson, the Court was faced with the issue of whether a jury must
unanimously agree on which specific felony violations made up the series necessary
to support a continuing criminal enterprise conviction. At trial, the defendant had
asked the district court to instruct the jury that they must unanimously agree on which
three prior violations made up the series. The court refused, and instead instructed
the jury that they did not have to agree on the particular violations so long as they all
agreed that the defendant had engaged in at least three prior violations as part of the
criminal enterprise. Id. at 817. On appeal, the Court recognized that it was called
upon to decide:
whether the statute’s phrase “series of violations” refers to one element,
namely a “series,” in respect to which the “violations” constitute the
underlying brute facts or means, or whether those words create several
elements, namely the several “violations,” in respect to each of which
the jury must agree unanimously and separately. Our decision will make
a difference where, as here, the Government introduces evidence that the
defendant has committed more underlying drug crimes than legally
necessary to make up a “series.”
Id. at 817-18. After thoroughly reviewing and interpreting the relevant statutory
language, the Court held that there was a unanimity requirement for the violations
making up the “series of violations” portion of the continuing criminal enterprise
statute. Id. at 824.
Norman argues that if juror unanimity is required for each violation making up
the series for continuing criminal enterprise convictions, unanimity must also be
required for the jury’s findings with respect to which persons make up the five or
more persons that a continuing criminal enterprise defendant is alleged to have
supervised. He suggests our decision in Rockelman and its progeny have effectively
been overruled by the Supreme Court’s decision in Richardson. In Richardson, the
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Court reasoned that “[t]o hold that each ‘violation’ here amounts to a separate
element is consistent with a tradition of requiring juror unanimity where the issue is
whether a defendant has engaged in conduct that violates the law. To hold the
contrary is not.” Id. at 813. Richardson was based on the view that a “violation” was
more than just an element in support of a continuing criminal enterprise conviction,
because each act was itself a crime. In dicta, the Court expounded on how this was
different than other elements of a continuing criminal enterprise offense:
the Government points to a different portion of the statute, which
requires a defendant to have supervised “five or more other persons.”
21 U.S.C. § 848(c)(2)(A). The Government says that no one claims that
the jury must unanimously agree about the identity of those five other
persons. Its adds that the jury may also disagree about the brute facts
that make up other statutory elements such as the “substantial income”
that the defendant must derive from the enterprise, § 848(c)(2)(B), or the
defendant’s role in the criminal organization, § 848(c)(2)(A).
Assuming, without deciding, that there is no unanimity requirement with
respect to these other provisions, we nonetheless find them significantly
different from the provision before us. They differ in respect to
language, breadth, tradition, and the other factors we have discussed.
These considerations, taken together, lead us to conclude that the statute
requires jury unanimity in respect to each individual “violation.”
Id. at 824. Decisions of sister circuits since Richardson have generally declined to
extend the jury unanimity requirement to the “five or more persons” provision of
continuing criminal enterprise violations, see United States v. Short, 181 F.3d 620,
624 (5th Cir. 1999); see also United States v. Almaraz, 306 F.3d 1031, 1038-39 (10th
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Cir. 2002); United States v. Stitt, 250 F.3d 878, 886 (4th Cir. 2001),15 but we have not
had occasion to reconsider this issue since Richardson.
We recognize the significance of the right to a unanimous jury verdict.
Apodaca v. Oregon, 406 U.S. 404 (1972). We reiterate, however that we review this
matter only for plain error, meaning that the error must first be “plain” or “obvious.”
United States v. Olano, 507 U.S. 725, 734 (1993). Given our precedent, we cannot
say that Norman has satisfied us that any error with regard to the failure to give a
unanimity instruction was a plain or obvious one. Our holding is buttressed both by
the Supreme Court’s limiting language in the Richardson opinion, and the decisions
of our sister circuits since Richardson. Thus, while we may agree that a unanimity
instruction for the group census will safeguard a continuing criminal enterprise
defendant’s right to a unanimous jury verdict, the failure to give such an instruction
here does not warrant reversal.
VII. COURT RESPONSE TO JURY QUESTIONS
The defendants next argue that the district court erred in its response to a jury
question, and the error was so prejudicial as to warrant a new trial. Prior to trial, the
government was ordered to state on the record the counts for which its witnesses were
testifying at the time each witness took the stand. It complied with the order for the
majority of government witnesses, and the jury was informed before each witness
testified what counts their testimony concerned. The defendants were not required
15
The notable exception is the Ninth Circuit, which has held that unanimity is
required for the identity of the five persons alleged to be acting in concert since long
before the Supreme Court’s decision in Richardson. United States v. Jerome, 942
F.2d 1328, 1331 (9th Cir. 1991).
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to follow the same procedure for their examination of government witnesses, nor their
own witnesses. During their deliberations, the jury made the following inquiry:
The prosecution named the counts with certain witnesses. Do you only
take the testimony of that witness for that particular count and no other
testimony can be use[d]?
(Trial Tr. Vol. XXIII at 4686.) After conferring with counsel, the district court
responded by stating that “[y]ou may consider all testimony from all witnesses in
arriving at your verdicts.” (Id. at 4688.) Norman agreed to this response, but Cuervo
and Schoenauer objected to it. All defendants now argue that the trial court’s
response prejudiced them by removing previously imposed limitations on the
evidence and frustrating their trial strategies.
Because Norman agreed to the trial court’s response, he is precluded from
taking a contrary position before us. See United States v. Thompson, 289 F.3d 524,
526 (8th Cir. 2002) (holding that the defendant’s assent to the district court’s course
of action differs from inadvertently failing to object to such action and is thus not
subject to even plain error review).
As to Cuervo’s and Schoenauer’s properly preserved arguments, we review a
district court’s responses to jury questions for an abuse of discretion. United States
v. Smith, 104 F.3d 145, 148 (8th Cir. 1997). A trial judge’s response must be clear,
accurate, neutral, and non-prejudicial. United States v. Martin, 274 F.3d 1208, 1210
(8th Cir. 2001). Moreover, the judge should answer with concrete accuracy, limited
to the scope of the question asked. Id.-38-
In its discussion with counsel, the court explained that it believed its response
was appropriate because although the government announced which counts each
witness was testifying about for many of its witnesses, it neglected to make such an
announcement for a few of them. Moreover, the court further reasoned that cross-
examination may have touched on matters outside the scope of the announced counts.
Lastly, the defendants did not have to announce what counts each of its witnesses
were testifying about. We accept these rationales as reasonable, and find no abuse
of discretion in the district court’s response.
VIII. SCHOENAUER’S FORFEITURE TRIAL
Following his convictions related to the drug conspiracy, the district court
commenced a forfeiture trial related to a number of Schoenauer’s properties. The jury
found that four of the properties were subject to forfeiture, but the court altered the
verdict by returning one of the four to Schoenauer. Schoenauer contends that this
trial was infected with error and that the evidence presented at the trial was
insufficient to convict him.
Property is subject to forfeiture where the government proves by a
preponderance of the evidence that it was used or intended to be used to commit or
facilitate the commission of the underlying offense. 21 U.S.C. § 853(a)(2); United
States v. Bieri, 21 F.3d 819, 822 (8th Cir. 1994) (standard of proof). The evidence
at trial established that each property was used to store and distribute marijuana and
methamphetamine. While we have affirmed forfeitures of properties where drugs
were stored and transactions occurred, there must be more than “incidental or
fortuitous contact” between the property and the underlying offense. United States
v. Lewis, 987 F.2d 1349, 1356 (8th Cir. 1993). After thoroughly reviewing the trial
transcript and considering the government’s lesser burden in forfeiture proceedings,
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we find the evidence presented was sufficient to support the forfeiture of these
properties.
Schoenauer also argues that numerous trial errors infected his forfeiture
proceeding. Many of these do not merit discussion. We briefly address, however, his
claim that he was denied the effective assistance of counsel. At the end of the drug
conspiracy trial, his trial attorney informed the court that he would be out of town for
a few days, but that his partner could stand in to receive the verdict. The guilty
verdicts came in shortly after Schoenauer’s lawyer left town, and the district court
sought to go forward with the forfeiture proceeding. Standby counsel told the court
that because he did not attend the trial, he had no way to effectively represent
Schoenauer. Unpersuaded, the district court ordered that the forfeiture trial would
proceed after the jury was given a one-day break. Before commencement of the trial,
standby counsel reminded the district court that Schoenauer had not consented to
going forward without his trial attorney.
We believe this claim is better suited to collateral attack pursuant to 28 U.S.C.
§ 2255 than for us to decide on direct appeal. Accord Casas v. United States, 99 F.3d
1144 (8th Cir. 1996) (unpublished table decision); Autullo v. United States, 81 F.3d
163 (6th Cir. 1996) (unpublished table decision). At that time, Schoenauer would be
required to establish that counsel was constitutionally required for his forfeiture
proceeding, and, if so, that he was denied the assistance of counsel in such a way as
to prejudice his defense.
IX. SCHOENAUER’S FIREARM CONVICTIONS
In an unrelated but consolidated proceeding, Schoenauer was convicted of
three counts of possession of a firearm by an ineligible person. 18 U.S.C.
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§ 922(g)(9). He argues that § 922(g)(9) is unconstitutionally vague as applied to him,
that there was insufficient evidence to support the conviction, and that evidentiary
errors affected the fairness of his trial.
Under § 922(g)(9), it is unlawful for a person who has been convicted of a
misdemeanor crime of domestic violence to possess a firearm. A crime of domestic
violence is defined as one which involves the use or threatened use of physical force
or a deadly weapon “by a person who is cohabitating with or has cohabitated with the
victim as a spouse” or “by a person similarly situated to a spouse . . . of the victim.”
18 U.S.C. § 921(33)(A)(ii). Schoenauer had previously been convicted of assaulting
his secretary, whom he had engaged in a long-term extramarital affair. The evidence
showed that she and Schoenauer stayed together periodically at an apartment
Schoenauer kept. During this time, Schoenauer remained married and lived with his
wife. Schoenauer argues that the statute is unconstitutionally vague as applied
because under his unique circumstance–perpetrating an assault on someone who was
his partner in an extramarital affair–he could not tell if his conduct fell within the
confines of the statute. For support, Schoenauer directs us to evidence that he tried
to comply with the statute by checking with two different attorneys after its passage
to ensure he could still possess guns. According to Schoenauer, both attorneys told
him that he could keep his firearms. He did not present this evidence at trial, and only
did so at sentencing through a letter from one of the attorneys.
We find no merit to Schoenauer’s claim. To determine whether a statute is
unconstitutionally vague, we consider whether people of ordinary intelligence must
guess at the statute’s meaning and would differ as to their interpretation. United
States v. Smith, 171 F.3d 617, 622 (8th Cir. 1999). A common read of the statute
would alert a person of ordinary intelligence that the phrase “similarly situated to a
spouse” is meant to include assaults perpetrated against those who are not spouses,
yet share their defining characteristics. Schoenauer was not left without direction as
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to the statute’s meaning; rather, its very terms make clear that his prior conviction for
assaulting his affair partner may preclude him from possessing firearms. Accord
United States v. Thompson, 134 F. Supp. 2d 1227, 1229-30 (D.Utah 2001) (finding
the phrase “similarly situated to a spouse” was not unconstitutionally vague as
applied to defendant’s battery conviction perpetrated on his girlfriend). While he
alleges that the misadvice of his counsel led him to the opposite conclusion, we find
this evidence–which was not presented at trial–at odds with a common sense
interpretation of the statute.
Schoenauer next contends that the evidence cannot support his convictions.
At trial, he stipulated to his gun possession, but contested the fact that the prior
assault was a crime of domestic violence. The statute includes as domestic violence
crimes those perpetrated on a person similarly situated to a spouse of the defendant.
While Schoenauer’s victim was not his spouse, the evidence showed that she shared
an intimate personal relationship with Schoenauer. Thus, the jury was free to
determine, as a factual matter, that she was in a position similar to a spouse. We will
not disturb that finding.
Lastly, Schoenauer contends that the district court abused its discretion in
admitting certain evidence at trial. “We afford great deference to the district court’s
evidentiary rulings, reversing only where there has been a clear abuse of discretion.”
United States v. Briley, 319 F.3d 360, 363 (8th Cir. 2003). At trial, Schoenauer
sought to establish that his marriage was stable in order to show his abuse victim was
not “spouse-like.” He tried to do so through his own testimony, and the testimony of
his wife that their marriage was good. The district court permitted the government
to cross-examine Schoenauer’s wife about Schoenauer’s extramarital affairs and
children born out of wedlock, and to question him about his affairs.
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Particularly because of Schoenauer’s defense that his marriage precluded him
from having someone similarly situated to his spouse, we find this line of questioning
was properly permitted by the district court. As recognized by the district court,
Schoenauer himself opened the door for this evidence to be admitted. Although
prejudicial, this evidence is clearly relevant, and we find no abuse of discretion in its
admittance.
X. SENTENCING ISSUES
Norman and Schoenauer appeal the district court’s sentencing determinations,
and the government cross-appeals the district court’s two-level downward departure
for Schoenauer. Norman and Schoenauer both argue that the district court clearly
erred in determining drug quantity, and Norman argues that the district court further
erred by enhancing his sentence by four levels for being a leader or organizer.
Norman also contends the district court applied the wrong version of the Sentencing
Guidelines.
Norman suggests that the version of the Sentencing Guidelines in effect prior
to November of 1997 should have been used to determine his sentence. However,
because evidence at trial established that the drug conspiracy did not end until long
after November of 1997, the more recent version of the Sentencing Guidelines was
the appropriate version to use. United States v. Zimmer, 299 F.3d 710, 718 (8th Cir.
2002) (holding “where a defendant’s offense conduct straddles [a Sentencing
Guideline’s] enactment, the enactment can be applied to the defendant without
violating the Ex Post Facto Clause even when the enactment would result in a harsher
sentence”).
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Drug quantity determinations are factual in nature; thus, we review such
findings for clear error. United States v. Maggard, 156 F.3d 843, 848 (8th Cir. 1998).
The district court determined the drug quantity based on its recollection of the trial
testimony, an appropriate method of calculation. Id. Although the defendants argue
that the witness testimony at trial was inconsistent and incredible, we find those
determinations to be squarely within the province of the district court’s role as the
finder of fact.
We similarly reject the claim that the evidence did not support the district
court’s enhancement for Norman’s role as a leader or organizer. Reviewing for clear
error, United States v. Lashley, 251 F.3d 706, 712 (8th Cir. 2001), we find none.
Sentencing Guideline § 3B1.1(a) mandates that a defendant’s sentence be increased
by four levels “[i]f the defendant was an organizer or leader of a criminal activity that
involved five or more participants.” Trial testimony established that Norman
exercised authority over, and directed the activities of, at least five other participants,
and perhaps more. In light of this evidence, the district court did not err in applying
the § 3B1.1 enhancement.
Lastly, we address the government’s contention that Schoenauer’s two-level
departure was not warranted. We review the departure de novo. United States v.
Hutman, 339 F.3d 773, 775 (8th Cir. 2003). Schoenauer received a two-level
increase in his offense level for possessing a dangerous weapon–his firearms–during
the drug crimes. The two-level departure in this case was based on the district court’s
belief that Schoenauer had tried to conform his firearm possession to the law, as
evidenced by Schoenauer’s reliance on past counsel’s advice that he could legally
possess firearms notwithstanding his misdemeanor conviction. In other words,
Schoenauer would not have possessed a dangerous weapon if not for his attorney’s
mistaken advice. Finding that this made Schoenauer’s case exceptional and outside
the heartland of cases considered by the Sentencing Commission, see USSG § 5K2.0,
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p.s., the district court departed two levels, and sentenced Schoenauer to 210 months,
or 17.5 years, in prison. While the district court may not rely on an improper factor
to support a departure, cf. United States v. Petersen, 276 F.3d 432, 436 (8th Cir.
2001), we cannot say that a person’s attempted adherence to the law is irrelevant
when considering his sentence. We accordingly find no error in the district court’s
departure.
CONCLUSION
Having thoroughly considered the extensive evidence and arguments of the
parties in this case, we affirm in all respects the convictions and sentences of Robert
Lee Norman, Russell J. Schoenauer, and Pelayo Jose Cuervo.
______________________________
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