United States v. Christian Kowalko

595 F. App'x 163
CourtCourt of Appeals for the Third Circuit
DecidedDecember 11, 2014
Docket13-3690
StatusUnpublished

This text of 595 F. App'x 163 (United States v. Christian Kowalko) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Christian Kowalko, 595 F. App'x 163 (3d Cir. 2014).

Opinion

OPINION *

SMITH, Circuit Judge.

Following a jury trial in the United States District Court for the Eastern District of Pennsylvania, Christian Kowalko was convicted of conspiracy to distribute anabolic steroids, in violation of 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(E) and possession of anabolic steroids with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(E). On appeal, Kowalko challenges the sufficiency of the evidence underlying both convictions and the District Court’s imposition of a $15,000 fine. For the reasons that follow, we will affirm the judgment of the District Court.

I.

In late 2010 and early 2011, the Drug Enforcement Agency (“DEA”) was' immersed in an investigation of Keith Gidel-son, whom it suspected of distributing anabolic steroids and human growth hormones. From January to April 2011, DEA agents utilized a court-authorized wiretap on Gidelson’s cellular telephone and recorded, inter alia, 94 telephone call or text message communications between Gidelson and Kowalko. These communications revealed that Kowalko had purchased anabolic steroids, such as testosterone, and other substances, such as human growth hormone and clenbuter-ol, from Gidelson on a regular basis. They also made clear that Kowalko redistributed the testosterone he purchased from Gidelson to other customers. During a call initiated by Kowalko on March 18, 2011, he asked Gidelson if he could purchase testosterone, insulin-like growth factor (“IGF”), and clenbuterol. Gidelson responded that the drugs were available and instructed Kowalko to pick them up at his residence some time before 7:00 pm. Shortly before 7:00 pm, video surveillance recorded Kowalko entering Gi-delson’s residence and exiting approximately 25 minutes later carrying a blue plastic bag.

On October 24, 2012, a grand jury in the Eastern District of Pennsylvania returned a two-count second superseding indictment charging Kowalko with conspiracy to distribute anabolic steroids, in violation of 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(E), and possession of anabolic steroids with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(E). Kowalko pled not guilty and proceeded to trial on December 4, 2012. At trial, the Government played for the jury 11 phone conversations between Kowalko and Gidelson, including the March 18, 2011 conversation initiated by Kowalko, and the two video clips showing Kowalko entering Gidelson’s residence and exiting with a blue plastic bag. On December 7, 2012, the jury found Kowalko guilty of both charges. Thereafter, the District Court sentenced Kowalko to 48 months’ imprisonment and imposed a $15,000 fine. 1 Kowalko’s counsel did not object to the fine, and in fact stated that he “d[id not] have a problem with the *165 fíne.” J.A. 469. This timely appeal followed.

II.

The District Court had jurisdiction under 18 U.S.C. § 3231. We exercise jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). “In reviewing a jury verdict for sufficiency of the evidence, we must consider the evidence in the light most favorable to the government and affirm the judgment if there is substantial evidence from which any rational trier of fact could find guilt beyond a reasonable doubt.” United States v. Benjamin, 711 F.3d 371, 376 (3d Cir.), cert. denied, — U.S. -, 134 S.Ct. 309, 187 L.Ed.2d 220 (2013) (internal quotation marks and citation omitted). “We review the court’s findings as to whether the defendant was able to pay a fine, as well as its determination of the amount of any fine, for clear error.” United States v. Seale, 20 F.3d 1279, 1284 (3d Cir.1994) (citing United States v. Demes, 941 F.2d 220, 223-24 (3d Cir.1991)).

III.

On appeal, Kowalko argues that the Government failed to produce sufficient evidence to support his convictions and that the District Court erred by failing to consider his ability to pay the $15,000 fine it ultimately imposed. For the reasons that follow, we reject each of these arguments.

First, the Government introduced evidence from which a reasonable jury could have found Kowalko guilty of possessing with the intent to distribute anabolic steroids beyond a reasonable doubt. Numerous recorded phone conversations revealed that Kowalko regularly purchased testosterone from Gidelson and redistributed it to other customers. Further, based on the evidence presented, the jury could have reasonably concluded that on March 18, 2011, Kowalko successfully purchased all three drugs that he ordered, including testosterone.

As part of Kowalko’s sufficiency challenge, he also argues that the jury may have been confused as to whether the other substances he purchased on March 18, 2011, were anabolic steroids. We are not persuaded. The Government’s expert witness never represented to the jury that IGF or clenbuterol are anabolic steroids, even though when he did refer to anabolic steroids — such as testosterone, Sustoster-one, Equipoise, Trenbolone Acetate, Mast-erone, or Anadrol — he explicitly identified them as such. Further, during closing arguments the prosecutor told the jury, in no uncertain terms, that IGF is not an anabolic steroid. J.A. 217.

We also reject Kowalko’s sufficiency challenge to his conviction for conspiracy to distribute steroids. At the outset, Kowalko concedes that he failed to raise this claim in the District Court and, accordingly, that we review it on appeal for plain error. Johnson v. United States, 520 U.S. 461, 465-66, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997).

We hold that the District Court did not err, much less plainly err, in concluding that a reasonable jury could have found Kowalko guilty of conspiracy to distribute steroids. The Government introduced evidence that Kowalko repeatedly purchased anabolic steroids from Gidelson, and that the two discussed, inter alia, (1) Gidelson’s acquisition of anabolic steroids from his supplier; (2) the relative quality of different brands of anabolic steroids; and (3) the price Kowalko charged his customers for steroids he purchased from Gidelson.

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Related

Johnson v. United States
520 U.S. 461 (Supreme Court, 1997)
United States v. Joseph E. Demes
941 F.2d 220 (Third Circuit, 1991)
United States v. Steven J. Kadonsky
242 F.3d 516 (Third Circuit, 2001)
United States v. Nathaniel Benjamin
711 F.3d 371 (Third Circuit, 2013)
United States v. Iglesias
535 F.3d 150 (Third Circuit, 2008)

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Bluebook (online)
595 F. App'x 163, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-christian-kowalko-ca3-2014.