United States v. David J. Culver

929 F.2d 389, 32 Fed. R. Serv. 654, 1991 U.S. App. LEXIS 4924, 1991 WL 40974
CourtCourt of Appeals for the Eighth Circuit
DecidedMarch 28, 1991
Docket89-3008WM
StatusPublished
Cited by41 cases

This text of 929 F.2d 389 (United States v. David J. Culver) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth 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. David J. Culver, 929 F.2d 389, 32 Fed. R. Serv. 654, 1991 U.S. App. LEXIS 4924, 1991 WL 40974 (8th Cir. 1991).

Opinion

HANSON, District Judge.

David Culver appeals his conviction and sentence in district court. 1 We affirm.

I. BACKGROUND

Culver was convicted of conspiracy to transport a stolen aircraft, 18 U.S.C. § 371. Four other coconspirators either plead guilty or were convicted by a jury. Culver was sentenced to five years in prison, two years supervised release, and fined $6,050.

Appellant claims the district court erred in admitting evidence of prior bad acts, allowing inflammatory remarks from witnesses and the prosecutor, and in imposing sentence.

II. DISCUSSION

A. Evidence of Other Crimes

The district court admitted tape recorded conversations of an undercover agent, a confidential informant and the two cocon-spirators who had plead guilty. The conversations revealed prior acts of these conspirators, including the theft of another airplane. Appellant argues the district court erred in admitting the recordings because there was no evidence to connect defendant to any of these incidents.

Evidence of other crimes or prior bad acts are admissible if “(1) the evidence is relevant to a material issue; (2) the prior bad acts are similar in kind and reasonably close in time to the crime charged; (3) there is sufficient evidence to support a finding by the jury that the defendant committed the prior acts; and (4) the potential prejudice of the evidence does not substantially outweigh its probative value.” United States v. Anderson, 879 F.2d 369, 378 (8th Cir.1989) (footnotes omitted). The trial court’s decision will be overturned only if there has been an abuse of discretion. United States v. Bowman, 798 F.2d 333, 337 (8th Cir.1986). It is defendant’s burden to show the evidence clearly had no bearing on any of the issues involved. United States v. O’Connell, 841 F.2d 1408, 1422 (8th Cir.1988).

The undercover agent testified appellant acknowledged stealing the airplane referred to in the tape recordings. Some of the same conspirators were involved in the prior theft. This admission bears directly on whether Culver believed this to be a legitimate piloting job. As this was the crux of appellant’s defense, it was clearly relevant to a material issue in the case. The district court’s ruling is affirmed.

B. Inflammatory Evidence and Remarks

At the trial several witnesses made statements which implied the conspiracy was drug related. Appellant argues these statements were not relevant and highly prejudicial, and the prosecutor’s solicitation of them warranted a mistrial. All statements objected to were stricken but the court allowed the trial to proceed.

A motion for a mistrial is within the discretion of the district court and may be reversed only where there has been an abuse of discretion. United States v. Powell, 771 F.2d 1173, 1175 (8th Cir.1985). Even if a prosecutor’s conduct is improper it must also be so prejudicial as to deprive the defendant of a fair trial before it will warrant reversal. United States v. Hernandez, 779 F.2d 456, 460 (8th Cir.1985).

Considering the record as a whole, it cannot be said appellant was denied a fair trial because of these remarks. The trial court instructed the jury to disregard the stricken remarks. Additionally, appellant did not object to all evidence regarding illegal drugs. There was evidence of drug *392 use by the coconspirators during a meeting with the undercover agent. There was also evidence that part of the payment for the aircraft would be in the form of “goods,” which the undercover agent testified meant cocaine. The statements stricken by the court were no more damaging than the evidence regarding drugs which was admitted.

C. Sentencing

Appellant argues the district court erred both in departing from the guidelines and in its application of the guidelines.

1. Departure

The district court departed upward from the base level offense after finding the crime was committed to facilitate the transport of drugs. Appellant argues this was error for two reasons. First, the district court gave inadequate reasons for imposing the increased sentence. Second, no evidence supported the finding that appellant committed the offense to facilitate drug trafficking.

A sentence may be increased beyond the guidelines to reflect the actual seriousness of conduct if the offense was committed in order to facilitate the commission of another offense. United States Sentencing Commission, Guidelines Manual, (U.S.S.G.) § 5K2.9. Decisions to depart upward will be reversed only if the sentencing court abused its discretion. United States v. Justice, 877 F.2d 664, 666 (8th Cir.1989). No particular standard of proof is required in sentencing, but due process must be satisfied with findings adequate to make an appeal meaningful. United States v. Luster, 896 F.2d 1122, 1129 (8th Cir.1990).

While the court did not specifically state the evidence upon which it was relying, the court’s upward departure complies with the requirements of 18 U.S.C. § 3553(c)(2) (court shall state reasons for imposition of sentence if outside guideline range).

Additionally, the record supports the finding that the aircraft was to be used to transport illegal drugs. There were statements made by the coconspirators that part of the cost of the airplane would be paid in the form of cocaine. Drugs were referred to in the conversations between the agents and conspirators. There was also strong circumstantial evidence the aircraft would be used to transport illegal goods to and from Colombia.

We cannot say that it was error for the sentencing court to depart upward in this matter.

2. Adjustments

The district court increased the base offense level after finding appellant used more than minimal planning and for his use of a special skill. The offense level was also increased after the court found the airplane to be worth more than one million dollars. The court refused to reduce the base level for appellant’s role as a minor participant. Appellant argues the sentencing court erred by not having a fact finding hearing and because there was insufficient evidence to support the conclusions.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Felicia Balentine
219 F. App'x 606 (Eighth Circuit, 2007)
United States v. James Allen Martin
195 F.3d 1018 (Eighth Circuit, 1999)
United States v. Larry D. Gladfelter
168 F.3d 1078 (Eighth Circuit, 1999)
Johnson v. United States
683 A.2d 1087 (District of Columbia Court of Appeals, 1996)
United States v. Arthur Maurello
76 F.3d 1304 (Third Circuit, 1996)
United States v. Maurello
Third Circuit, 1996
United States v. Y. George Roggy
76 F.3d 189 (Eighth Circuit, 1996)
United States v. Timothy Edward Graham
60 F.3d 463 (Eighth Circuit, 1995)
United States v. Rice
49 F.3d 378 (Eighth Circuit, 1995)
United States v. Smith
49 F.3d 362 (Eighth Circuit, 1995)
United States v. Paul Stephen Gandy
36 F.3d 912 (Tenth Circuit, 1994)
United States v. Dale Thomas Johns
15 F.3d 740 (Eighth Circuit, 1994)
United States v. Stephanie Diane Neely
5 F.3d 532 (Eighth Circuit, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
929 F.2d 389, 32 Fed. R. Serv. 654, 1991 U.S. App. LEXIS 4924, 1991 WL 40974, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-david-j-culver-ca8-1991.