United States v. Lavonne Roach, United States of America v. Rodney Jackson, United States of America v. Kevin Eagle Tail

164 F.3d 403
CourtCourt of Appeals for the Eighth Circuit
DecidedFebruary 24, 1999
Docket98-1762, 98-1767 and 98-1768
StatusPublished
Cited by102 cases

This text of 164 F.3d 403 (United States v. Lavonne Roach, United States of America v. Rodney Jackson, United States of America v. Kevin Eagle Tail) 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. Lavonne Roach, United States of America v. Rodney Jackson, United States of America v. Kevin Eagle Tail, 164 F.3d 403 (8th Cir. 1999).

Opinion

MURPHY, Circuit Judge.

LaVonne Roach, Rodney Jackson, and Kevin Eagle Tail appeal their convictions and sentences for conspiracy to distribute methamphetamine in violation of 21 U.S.C. § 846. They seek a new trial or resentencing because of claimed errors including admission of hearsay evidence, juror misconduct, improper jury instructions, and several sentencing issues. We affirm.

I.

A one count indictment charged appellants with a conspiracy to distribute methamphetamine in South Dakota. The government presented evidence at trial indicating that the conspiracy began no later than the summer of 1994 and continued until January 1996. Its organization changed over time. In the beginning Mario Osario controlled a distribution network which moved methamphetamine from California to Rapid City, South Dakota by way of Salt Lake City. Although Osario occasionally travelled to Rapid City and participated in transactions there, his associate Sergio Gutierrez was primarily responsible for the flow of drugs and money between the states. At least monthly and sometimes weekly, Gutierrez delivered methamphetamine to LaVonne Roach, Osar-io’s contact in Rapid City. Payment for the drugs was made by Roach to Gutierrez within a few days. Gutierrez made between 10 and 20 trips during this period, generally carrying between 3 and 10 pounds of methamphetamine per trip. On the return trips he carried money back to Osario.

Roach distributed the methamphetamine to a number of local users and dealers, including Rodney Jackson, Kevin Eagle Tail, Phyllis Fairbanks, 1 Patrick Peschong, Jeff Mousel, and others. Osario was often present when Mousel purchased methamphetamine from Roach. Clay Williamson and Toby Ness became involved in distributing the methamphetamine through Mousel. The dealers Roach supplied would turn to one another when she was unavailable or without drugs. The government presented evidence of transactions between Fairbanks and Eagle Tail, Mousel and Jackson, and Peschong and Eagle Tail.

The supply chain changed with the death of Osario on April 30, 1995. Law enforcement officers had arrested him on his way into Rapid City and seized 2.74 pounds of 99% pure methamphetamine. Osario agreed to cooperate by making a controlled delivery to Jeff Mousel. Instead of completing the transaction, however, he obtained a gun from Mousel and committed suicide shortly after them meeting. After Osario’s death, Gutierrez developed another methamphetamine source and agreed to continue supplying Roach, but he also sold to other dealers in the Rapid City area, including Jackson and Eagle Tail. Gutierrez was arrested in January 1996.

After a three day trial, the jury found all three defendants guilty of conspiracy. The *408 defendants filed a motion for new trial based on juror misconduct. The district court denied that motion and a subsequent motion to reconsider. At sentencing the court found that the conspiracy involved over 42 kilograms of methamphetamine, producing a base offense level of 38 under U.S. Sentencing Guidelines Manual § 2Dl.l(c)[U.S.S.G.]. The court gave Roach a four level enhancement based on her leadership role in the conspiracy and Eagle Tail a two level enhancement for possession of a firearm. After taking into account their individual criminal histories, the district court sentenced Roach to 30 years imprisonment and both Jackson and Eagle Tail to 25 years.

Appellants appeal their convictions, the denial of their post-trial motion for a new trial, and their sentences. They claim that they are entitled to a new trial because of hearsay evidence, the court’s refusal to issue a subpoena for certain bank records or to give a multiple conspiracy instruction, and juror misconduct. Appellants also claim the court erred in its drug quantity findings and in attributing drugs to them that Osario had intended to deliver to Mousel, and Rodney Jackson contends that it was wrong to consider two. misdemeanor convictions in determining his criminal history.

II.

A.

Government witnesses testified at trial about many out of court statements relating to drug distribution. 2 There were statements attributed to Roach, Jackson, Eagle Tail, Mousel, Fairbanks, Peschong, Osario, Gutierrez, Wanda Edwards, Beaver Pacheco, Steve Cordova, Pat Tracy, and others. Appellants claim that this testimony was hearsay and that the government failed to establish that the declarants had participated in a conspiracy with each defendant and that every statement was in furtherance of a single conspiracy. They also claim the district court did not make sufficient findings in ruling on these issues. We review the trial court’s evidentiary decisions for abuse of discretion and will only reverse if an error substantially prejudiced the outcome. See United States v. Goodson, 155 F.3d 963, 969 (8th Cir.1998); Pittman v. Frazer, 129 F.3d 983, 989 (8th Cir.1997).

The district court addressed the admissibility of coconspirator statements at several points during the proceedings, starting with an objection during the testimony of the first government witness. When the prosecutor asked Toby Ness about statements by Jeff Mousel, defense counsel objected. The court overruled the objection, saying:

The objection has been made to the statement as hearsay____ [A] statement is not hearsay if made by a co-conspirator of a party during the course and in furtherance of the conspiracy [citation omitted]. To satisfy the requirements of [the exception], the government must demonstrate that, 1. A conspiracy existed, 2. That the defendants were part of the conspiracy; and 3: That the declaration was made in the course of and in furtherance of the conspiracy. These elements must be proven ... by a preponderance of the evidence.... [Statements by a co-conspirator identifying a fellow conspirator, are considered to be in furtherance of a conspiracy.... Moreover, statements which reveal the existence and progress of the conspiracy are also in furtherance of a conspiracy. The evidence so far does establish a conspiracy on the part of Mousel and Mr. Ness. Statements which were made identifying others would be in furtherance of the conspiracy.... The objection that testimony is hearsay is denied.

Soon thereafter, Roach’s counsel requested and received a standing hearsay objection to cover every witness. 3

The court again addressed the coconspirator exception during the testimony of Sergio Gutierrez after he referred to statements by Mario Osario. Jackson’s attorney objected, *409 and the district court ruled that the evidence was admissible under 801(d)(2)(E). 4

At the close of the government’s case, the defendants moved for a mistrial or judgment of acquittal and Jackson’s attorney argued that the government had not established the foundation for coconspirator statements because it had not shown that the evidence revealed a single conspiracy instead of multiple conspiracies.

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Bluebook (online)
164 F.3d 403, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-lavonne-roach-united-states-of-america-v-rodney-jackson-ca8-1999.