United States v. Peter George Noe, United States of America v. Timothy James Schultz, United States of America v. Amy Marie Placek, United States of America v. Terry Lynn Bauman

Citations: 411 F.3d 878; 67 Fed. R. Serv. 552; 2005 U.S. App. LEXIS 10669Docket: 03-38378

Court: Court of Appeals for the Eighth Circuit; June 9, 2005; Federal Appellate Court

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Peter Noe, Timothy Schultz, Amy Placek, and Terry Bauman were involved in a methamphetamine distribution conspiracy in Austin, Minnesota, from 2000 to 2002. Noe was convicted of conspiring to distribute both methamphetamine and marijuana, while Schultz was found guilty of similar charges. The district court sentenced Noe and Schultz to 480 months in prison, whereas Placek and Bauman, who pleaded guilty, received sentences of 57 and 100 months, respectively. 

The conspiracy involved multiple individuals facilitating drug trafficking, primarily sourcing methamphetamine from California. Significant evidence included a police raid in 1999 that uncovered firearms, marijuana, and cash at a residence shared by Noe and Schultz. Ongoing investigations led to another raid in 2002 at a hotel room occupied by Noe, where more drugs and cash were found. 

Despite being incarcerated, Noe continued to discuss drug orders and firearms over monitored phone calls, expressing a sense of confidence in evading law enforcement. The conspiracy's operations required careful drug storage, which involved Placek and Bauman. Tensions arose within the conspiracy, exemplified by an incident where Schultz violently confronted a sub-dealer who had failed to make a payment. 

All defendants appealed their convictions and sentences, seeking new trials or resentencing. The court ultimately affirmed the lower court's decisions.

Bobby Sea, representing Schultz, cross-examined Price regarding his prior misconduct, including marijuana use, driving under the influence, and vandalizing police cars. During redirect, Price revealed that Noe had solicited him to vandalize police cars for a monetary reward, associating the act with a white supremacist gang known as "I.E. Wood," which he claimed included Noe and Schultz. The court instructed the jury to disregard the gang affiliation testimony.

On appeal, Noe argues the district court improperly admitted evidence of his gang membership and denied his motion to sever trials from Schultz. Schultz supports Noe's appeal and additionally contests the admission of evidence regarding his assault on Price, as well as enhancements to his sentence related to the use of a minor, firearm possession, and his role as an organizer. Both defendants sought resentencing based on the Blakely v. Washington ruling.

Placek, a co-defendant who pleaded guilty under a plea agreement to testify against Noe and Schultz, contacted Noe to express her intent to undermine government witnesses and indicated a willingness to change her testimony. After altering her story to align with her assurances to Noe, the prosecutor chose not to call her as a witness and declined to request a downward departure for her sentencing due to her evasiveness and the nature of her communication with Noe. Placek claims the government failed to disclose evidence related to her statements, violating Rule 16 and her Sixth Amendment rights.

Bauman, who pleaded guilty to methamphetamine trafficking and testified against Noe and Schultz, received a 100-month sentence following a government-requested 5K1.1 downward departure, significantly lower than the Guidelines range. On appeal, he contends the district court abused its discretion by not imposing a sentence lower than 100 months; however, his claim is dismissed as the extent of downward departures is not reviewable in this circuit.

Noe and Schultz claimed reversible error regarding the admission of evidence about their membership in a white supremacist gang, which was not objected to by defense counsel during the trial, leading to a plain error review. Noe's attorney initiated the topic of vandalism, prompting further inquiry by the prosecution into gang-related actions. Although an objection was raised regarding speculation about gang membership, it was ultimately substantiated by evidence that Noe and Schultz had gang tattoos. The court instructed the jury to disregard the gang membership as evidence of guilt concerning the charged crimes. The defense did not object to several relevant questions during the prosecution's examination that could have challenged the relevance of the gang evidence. Since the defense opened the door to this topic, the admission of the gang membership evidence was deemed permissible. The court found no misconduct by the prosecution and determined that even if the questioning was irrelevant, it did not prejudice the defendants, especially given the substantial evidence against them and the court's limiting instruction. Therefore, no reversible error was found.

Noe argues that the district court erred by denying his motion to sever his trial from Schultz's. A motion for severance is denied unless there is clear prejudice and an abuse of discretion. It is established that severance is not warranted merely because evidence against one defendant is more damaging. The legal precedent emphasizes a strong presumption against severing properly joined cases to achieve correct outcomes and avoid inconsistent verdicts. Joint trials provide the jury with a comprehensive view of the evidence, enhancing the likelihood of a correct verdict. However, severance may be necessary if the evidence is such that a jury cannot reasonably compartmentalize the evidence against different defendants.

Noe claims that the prosecutor failed to distinguish Schultz's violent acts from his own and that the evidence against Schultz overshadowed his involvement in the conspiracy, risking jury confusion. Despite these claims, the court finds that even if there was a disparity in evidence strength, it does not justify severance. Noe's argument regarding the prosecutor's closing statement is rejected, as there was clarity about who committed the violence. The prosecution consistently identified Schultz as the perpetrator of the violence, and the reference to "these people" was not misleading. Noe's connection to the violence through his role in the conspiracy and possession of firearms indicates his complicity. The court concludes that there is no reason to deviate from the principle that co-conspirators are rarely improperly tried together.

Schultz contends that evidence of his assault on Price should be excluded as overly prejudicial under Rule 403 of the Federal Rules of Evidence. The district court's denial of this motion is reviewed for abuse of discretion.

Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, as stated in Federal Rule of Evidence 403. Schultz argues that evidence of his assault on Price is minimally relevant to his drug charges and is highly prejudicial. However, the assault was related to Schultz's attempts to collect a drug debt, thereby supporting the conspiracy the government aimed to prove. Evidence of violent acts by conspirators is admissible as it directly relates to the conspiracy.

In assessing whether the evidence presents too great a danger of prejudice, the court considers the unfairness of the evidence and whether it supports a decision on an improper basis. Schultz's violent actions communicated the seriousness of the conspiracy and his leadership role within it. Despite its graphic nature, the evidence did not create an unfair prejudice that outweighed its relevance, as established in similar case law.

Regarding the constitutionality of Noe's and Schultz's sentences under the Sixth Amendment, the ruling in United States v. Booker requires that any fact necessary for a sentence exceeding the maximum must be admitted by the defendant or proven to a jury. The enhancements applied by the district court indicated a Booker error. Since Noe and Schultz did not object to their sentences, the review follows a plain error standard.

To succeed in demonstrating a plain error that affected substantial rights, they must show a reasonable probability that they would have received lesser sentences without the mandatory guidelines. The record does not support this claim, as the district court could have sentenced them to lesser terms even under mandatory guidelines. The sentences imposed significantly exceeded the minimum guidelines, contradicting any assertion that an advisory guidelines regime would likely have resulted in lesser sentences.

Schultz contests the application of three sentencing enhancements under the United States Sentencing Guidelines: 3B1.4 for using a minor, 2D1.1(b)(1) for firearm possession, and 3B1.1(a) for being an organizer or leader. The review of factual findings is for clear error, while the application and interpretation of guidelines are reviewed de novo. Schultz admits to involving minor Jessica Taft in a drug conspiracy, but argues that 3B1.4 should not apply as he used her before turning twenty-one. However, Taft testified to being a courier for Schultz after his twenty-first birthday, which, if believed, negates Schultz's argument. 

Regarding the firearm possession enhancement, Schultz claims insufficient evidence and contends that the district court failed to establish a clear improbability of the weapon's connection to criminal activity. The government must prove by a preponderance of evidence that a firearm was present and linked to the offense. Witness testimony indicated Schultz's ownership of firearms and their relation to the drug conspiracy. Although firearms were recovered from a residence prior to the conspiracy's start, the focus is on demonstrating Schultz's possession during the relevant timeframe. The district court noted Schultz's responsibility for his co-defendant's activities, but the enhancement cannot solely rely on the co-defendant's firearm possession. The testimonies of Borg and Price, if credible, can establish both possession and nexus to the offenses. The court concluded there was no clear error in the application of the enhancement based on their consistent testimonies.

Schultz argues that he was merely a manager rather than a leader in the criminal activity attributed to him, claiming that Noe was more responsible and had more evidence against him regarding firearm possession. However, these arguments do not support his legal position. The four-level role enhancement under U.S.S.G. § 3B1.1(a) is based on a defendant's decision-making authority, participation in the offense, and control over others. The court has a broad interpretation of "organizer" and "leader," allowing for enhancements even if a defendant is not the sole organizer or leader of all participants. Evidence indicated that Schultz exercised control over conspirators and supplied drugs, justifying the district court's decision to enhance his sentence. 

Following the guidelines range determination, the court assessed the reasonableness of Schultz's sentence under 18 U.S.C. § 3553(a), which includes factors that influence sentencing decisions. Schultz's sentence of 360 months to life aligns with these factors, reflecting the seriousness of the offense, deterring future criminal conduct, and protecting the public. The same reasoning applies to Noe's sentence, negating the need for further discussion on his appeal.

Placek claims the government violated Rule 16(c) by not providing her with a transcript of her telephone conversation with Noe. However, since Placek pleaded guilty prior to the statement and authored it herself, this claim is rejected.

Placek argues that the government's failure to provide her attorney with a transcript of her conversation with Noe, which occurred a week before trial, constituted a violation of her Sixth Amendment right to counsel. She asserts that had her attorney been informed of this evidence, he would have attended the meeting. However, her attorney was already aware of the meeting and the impending trial date, and the government did not prevent his attendance or confront Placek with the evidence. Placek claims that the government's lack of transparency undermined her ability to waive her right to counsel intelligently and voluntarily. She references United States v. Leonti, asserting that the period between a guilty plea and sentencing is critical and requires counsel's assistance to avoid substantial prejudice.

Placek acknowledges that she had no right to a downward departure motion during the trial or to testify on the government's behalf. The government was not obligated to inform her counsel of her behavior that could affect her sentencing options, as it was Placek's responsibility to keep her attorney informed. The Sixth Amendment does not mandate that the government disclose details of a defendant's conduct that could jeopardize their case strategies. Nonetheless, the government did eventually disclose the relevant evidence to Placek's counsel before sentencing, where an evidentiary hearing was held, and her challenges to the government's decisions were unsuccessful.

Additionally, Placek's assertion that the government acted in bad faith by not filing a departure motion under 5K1.1 is unfounded. The plea agreement stipulates that the government retains discretion in determining substantial assistance, which negates the possibility of compelling such a motion unless evidence of unconstitutional motives is presented. Placek did not allege any unconstitutional motives, such as discrimination, and the record does not indicate any improper reasons for the government's decision. Consequently, the sentences of all four appellants were affirmed.