United States v. Marc David Rabins, United States of America v. A.L. Johnson

63 F.3d 721

• Court: Court of Appeals for the Eighth Circuit
• Decided: October 27, 1995
• Docket: 94-2937, 94-2938
• Status: Published

Opinions

RICHARD S. ARNOLD, Chief Judge.

Marc David Rabins appeals his convictions in the United States District Court¹ for the Southern District of Iowa on one count of conspiracy to distribute methamphetamine, three counts of use of a communications facility to distribute methamphetamine, and one count of distribution of methamphetamine. A.L. Johnson, a co-conspirator who pleaded guilty to one count of conspiracy to distribute methamphetamine, appeals his sentence of 96 months’ imprisonment. Rabins’s and Johnson’s appeals are consolidated for our review. We affirm both Rabins’s convictions and Johnson’s sentence.

I.

This case involves a conspiracy to sell methamphetamine in the Des Moines area. In July of 1992, Charles Brooks, a Des Moines tavern owner, hired Johnson to work as a bartender in his tavern, the Barbell Athletic Club. The two men began a friendship and discovered a mutual enjoyment of methamphetamine. Together they purchased the drug from local suppliers for personal use and for occasional sale to other users. Over time, Brooks’s and Johnson’s personal usage and sales increased.

In February of 1993, Brooks and Johnson encountered problems with their local source of methamphetamine. Johnson then suggested a friend in California, Rabins, as a possible supplier.² Johnson contacted Ra-bins, who indicated an interest in supplying the drug. The first transaction between Johnson, Rabins, and Brooks occurred in April of 1993. Johnson and Brooks wired cash to Rabins in California, and Rabins mailed methamphetamine to Iowa. Several similar transactions followed — an estimated 27 in all — with drug shipments ranging from 1 kilogram to 3 kilograms.

The conspiracy was foiled on August 13, 1993, when the Des Moines Police Department arrested Brooks after he sold methamphetamine to an informant. The officers seized 191 grams of methamphetamine from his apartment and recovered $3,000 from a safety deposit box. Shortly thereafter, Brooks became a cooperating witness. Ra-bins and Johnson were later arrested.

On February 18, 1994, the government filed a seven-count indictment against Rabins and Johnson in the Southern District of Iowa. Count I charged Rabins and Johnson with conspiracy to distribute methamphetamine. Count II through Count VI charged both men with conspiracy to distribute methamphetamine and use of a communications facility to distribute methamphetamine. Count VII charged Rabins individually with distribution of methamphetamine.

Shortly before Rabins’s trial, Johnson entered into a plea agreement with the government whereby he pleaded guilty to one count of conspiracy to distribute methamphetamine and became a cooperating witness. Following a jury trial, Rabins was found guilty of Counts I through IV and Count VII. Rabins appeals from his convictions. Johnson appeals his sentence.

II. Rabins

A.

First, Rabins argues that the District Court erred by denying his motion for judgment of acquittal based upon a variance of proof between the single conspiracy charged in the indictment and evidence of multiple conspiracies presented at trial. As support for this argument, Rabins cites agreements between Brooks and several other suppliers of methamphetamine.³

In order to prevail on a motion for acquittal based on a fatal variance between the single conspiracy charged and the proof offered at trial, Rabins must establish that a variance exists, and that the variance affected his substantial rights. See United States v. Anderson, 618 F.2d 487, 490 (8th Cir.1980). The question in this ease is whether the evidence is sufficient to demonstrate an overall conspiracy to obtain and sell methamphetamine and that Rabins “knowingly joined such conspiracy and participated in furthering its objectives.” Hayes v. United States, 329 F.2d 209, 214 (8th Cir.), cert. denied, 377 U.S. 980, 84 S.Ct. 1883, 12 L.Ed.2d 748 (1964). We view the evidence and all reasonable inferences arising from the evidence in the light most favorable to the jury’s verdict. United States v. Willis, 967 F.2d 1220, 1225 (8th Cir.1992).

The record is replete with evidence from which the jury could conclude that a single conspiracy to distribute methamphetamine existed which involved Brooks, Johnson, and later Rabins. Brooks and Johnson testified that they agreed to purchase and distribute methamphetamine. The government presented evidence, including telephone records and mailing receipts, demonstrating that Rabins entered into an agreement with Brooks and Johnson to supply methamphetamine.

In addition, the fact that Johnson had other means of obtaining methamphetamine does not support Rabins’s claim that multiple conspiracies existed. As we read the record, the change in suppliers over time, simply demonstrates the varied phases of one basic plan to obtain and distribute illegal drugs. See United States v. Davis, 882 F.2d 1334, 1342 (8th Cir.1989), cert. denied, 494 U.S. 1027, 110 S.Ct. 1472, 108 L.Ed.2d 610 (1990). The jury certainly could have drawn the same conclusions from the evidence presented. Therefore, the District Court did not err by denying Rabins’s motion for judgment of acquittal.

B.

Next, Rabins contends that the District Court abused its discretion by denying his motion for a new trial based on the government’s failure to disclose evidence that Johnson tested positive for methamphetamine during the period that he was under home arrest.⁴ Rabins claims that the failure to disclose Johnson’s test results violated his due-process rights and his Sixth Amendment right of confrontation.

First, we consider Rabins’s due-process argument. In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963), the Supreme Court stated that “suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”

There is no question that the prosecution knew that Johnson tested positive for methamphetamine prior to trial, or that the test results were somewhat favorable to the defense. Under the circumstances, the government had a duty to disclose this information. Thus, the conviction “‘must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.’ ” United States v. Duke, 50 F.3d 571, 577 (8th Cir.1995) (quoting United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342 (1976)). Despite our dismay at the prosecutor’s failure to reveal that Johnson may have given perjured testimony when he said he was not using drugs,⁵ we conclude that there is no reasonable likelihood that Johnson’s false testimony affected the jury’s judgment.

We note initially that Johnson was not an exemplary witness. Johnson admitted that he had been a methamphetamine user and distributor. He was unable to remember details regarding the conspiracy. On cross-examination, Johnson admitted that he had entered into a plea agreement with the government in exchange for his testimony. Thus, the jury was given full information regarding Johnson’s credibility, previous drug use, and possible bias.

We also note that Johnson’s testimony was cumulative for the most part. Both Johnson and Brooks testified with regard to the details of the conspiracy. Because it is unlikely that presenting Johnson’s test results would have affected the jury’s verdict, the District Court did not abuse its discretion by denying Rabins’s motion for a new trial.

In a related argument, Rabins maintains that his Sixth Amendment right of confrontation was violated when the government suppressed Johnson’s test results. An accused’s right to confrontation is violated when he is “ ‘prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness.’ ” United States v. Boykin, 986 F.2d 270, 276 (8th Cir.), cert. denied, — U.S. —, 114 S.Ct. 241, 126 L.Ed.2d 195 (1993) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 680, 106 S.Ct. 1431, 1435-36, 89 L.Ed.2d 674 (1986)). In the past, we have recognized a Sixth Amendment violation where the positive drug test of an “apparently blameless witness” was withheld from the defense. United States v. Simmons, 964 F.2d 763, 770 (8th Cir.), cert. denied, — U.S. —, 113 S.Ct. 632, 121 L.Ed.2d 563 (1992).

Johnson was far from an apparently blameless witness. He admitted to drug use and distribution. He also admitted that his plea agreement called for him to plead guilty to distribution of methamphetamine. Moreover, the defense had the opportunity to cross-examine Johnson thoroughly. These facts persuade us that Rabins’s Sixth Amendment right to confrontation was not abridged.

C.

Rabins next maintains that the District Court abused its discretion by limiting FBI Agent Kenneth Moore’s testimony. The Court limited the testimony⁶ under Fed. R.Evid. 403, citing unfair prejudice and confusion.

Rule 403 grants the trial court the discretion to exclude relevant evidence when its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading of the jury. Fed.R.Evid. 403. We accord great deference to the District Court’s application of the Rule 403 balancing test, and will reverse only if the Court committed a clear abuse of discretion. United States v. Mitchell, 31 F.3d 628, 631 (8th Cir.1994). After a careful review of the record, we cannot say that the Court abused its discretion in this case.

D.

Finally, Rabins contends that the District Court erred by denying his supplemental motion for new trial based on newly discovered evidence. Rabins claims that after the trial he discovered that Johnson and Brooks were supplied methamphetamine by John Brooks, Charles Brooks’s nephew. He alleges that John Brooks’s involvement in the conspiracy was Brady information, and failure to disclose it violated his due-process right to a fair trial and his Sixth Amendment right of confrontation.

To succeed on a motion for new trial based on newly discovered evidence, the new evidence must be of such a nature that a new trial would likely produce an acquittal. United States v. Jones, 34 F.3d 596, 600 (8th Cir.1994), cert. denied, — U.S. —, 115 S.Ct. 1701, 131 L.Ed.2d 563 (1995) (citing United States v. Page-Bey, 960 F.2d 724, 727 (8th Cir.1992). Whether the evidence rises to this level is initially left to the discretion of the trial court, and this Court will reverse the trial court’s decision only when there has been a clear abuse of discretion. Ibid.

We find no abuse of discretion, because the evidence of Charles Brooks’s involvement in the conspiracy is not likely to produce an acquittal. See ibid. It is also not material, and thus Brady does not mandate a new trial in this case. See Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97. Furthermore, Rabins’s Sixth Amendment right of confrontation was not violated, since Rabins exercised his right to cross-examine Brooks on issues of motive and bias. Cf. Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986).

III. Johnson

On April 29, 1994, Johnson pleaded guilty to one count of conspiracy to distribute methamphetamine. At his July 15, 1994 sentencing hearing, the sentencing court calculated Johnson’s guideline range at 97 to 121 months, with a mandatory minimum sentence of 120 months. In recognition of Johnson’s substantial assistance, the government moved for a departure under U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e). The Court granted the government’s motion, departing to a sentence of 96 months, a 20 per cent reduction from the statutory mandatory minimum.

Johnson filed a motion for further downward departure under U.S.S.G. § 5H1.4, U.S.S.G. § 5K2.0, and 18 U.S.C. § 3553(b), based on the fact that he has Acquired Immunodeficiency Syndrome (AIDS),⁷ or, more specifically, AIDS-related Complex (ARC).⁸ The sentencing court denied his motion, reasoning that Johnson’s condition did not present an extraordinary physical impairment under § 5H1.4. On appeal, Johnson asserts that the Court erred by refusing to depart further based on his physical condition.

Johnson’s argument must fail because Johnson is subject to a statutorily mandated minimum sentence of 120 months. At the time of sentencing, a motion by the government under § 3553(e)⁹ for substantial assistance was “the only authority for [a] district court to depart below the statutorily mandated minimum sentence....”¹⁰ United States v. Rodriguez-Morales, 958 F.2d 1441, 1444 (8th Cir.), cert. denied, — U.S. —, 113 S.Ct. 375, 121 L.Ed.2d 287 (1992); see also United States v. Polanco, 53 F.3d 893 (8th Cir.1995); United States v. Stockdall, 45 F.3d 1257, 1259 (8th Cir.1995). Such a departure could be based “‘only [on] factors relating to a defendant’s cooperation,’ ” Stockdall, 45 F.3d at 1261 (quoting United States v. Thomas, 930 F.2d 526, 529 (7th Cir.), cert. denied, 502 U.S. 857, 112 S.Ct. 171, 116 L.Ed.2d 134 (1991)), not on a defendant’s physical condition. Thus, a “desire to dictate the length of a defendant’s sentence for reasons other than his or her substantial assistance is not a permissible basis” for departure under § 3553(e). Ibid.

In a supplemental brief, Johnson asserts that once the sentencing court departed below the mandatory minimum on the basis of the government’s § 3553(e) motion, it was then free to depart below the mandatory minimum for any reason allowed by the guidelines or policy statements, including an extraordinary physical impairment. This argument must fail also. Section 3553(b) and § 5H1.4 provide for a departure from the guideline range only, not from the mandatory minimum.¹¹ When a guideline “by its plain terms makes no mention of departure below mandatory minimums,” Rodriguez-Morales, 958 F.2d at 1444, such departure is not appropriate. Id. at 1445. A motion of the government to depart below the mandatory minimum under § 3553(e) for substantial assistance does not open the door for a departure under § 3553(b) and § 5H1.4 based on an extraordinary physical impairment.

What we have said so far is sufficient to dispose of this appeal. The issue argued by the parties is whether the defendant Johnson had an “extraordinary physical impairment.” As we have explained, Johnson would not be entitled to consideration for a reduction in his sentence even if he wins this issue. In the particular circumstances of this case, however, we believe we should go on and decide the merits, as an alternative ground for affirmance. When the case was before the District Court, the United States, Johnson, and the Court all proceeded on the premise that Johnson would be entitled to consideration for a further departure below the mandatory-minimum sentence if he could demonstrate an “extraordinary physical impairment” within the meaning of U.S.S.G. § 5H1.4. The Court found against Johnson on the merits of this argument. The government did not claim in the District Court, nor did it claim in its main brief submitted on this appeal, that success on this argument would avail Johnson nothing because of the effect of the mandatory-minimum statute. The issue of the effect of the statute on the availability of a § 5H1.4 reduction came into the case only after this Court entered an order requesting the parties to address it. In response to this order, Johnson made the point, among others, that it would not be fair to him to affirm on a ground that was not only not raised below, but was inconsistent with the position taken by all parties in the District Court. For this reason — not directly contradicted by the government — we agree that we should proceed to address the merits of Johnson’s physical-impairment argument.

Even if the courts had the authority to depart below a statutory mandatory minimum on the basis of § 5H1.4, however, departure would not be appropriate in Johnson’s case. Certainly AIDS is a basis for a departure under § 5H1.4 when it “has progressed to such an advanced stage that it could be characterized as an ‘extraordinary physical impairment.’ ” United States v. Woody, 55 F.3d 1257, 1275 (7th Cir.1995). Whether a defendant has an extraordinary physical impairment under § 5H1.4 is a question of fact to be decided by the sentencing court. Cf. United States v. Behr, 33 F.3d 1033, 1037 (8th Cir.1994). We will not disturb the Court’s conclusion unless it is clearly erroneous. Id. at 1037.

The sentencing court considered Johnson’s medical records, Johnson’s testimony concerning his physical condition, the representations of Johnson’s attorney concerning his physical condition, and Johnson’s physical appearance.¹² After weighing each of these factors, the Court concluded that, at the time of sentencing, Johnson’s condition was not serious enough to justify a departure.

The sentencing hearing transcript supports the Court’s conclusion. Johnson was not taking medication for any AIDS-related ailments.¹³ In addition, he offered no evidence that imprisonment would worsen his condition or that he required special care. United States v. LeBlanc, 24 F.3d 340, 348-49 (1st Cir.), cert. denied, — U.S. —, 115 S.Ct. 250, 130 L.Ed.2d 172 (1994). Moreover, Johnson’s attorney stated unequivocally that his client was not seriously ill.¹⁴ Cf. United States v. Long, 977 F.2d 1264 (8th Cir.1992) (an extraordinary physical impairment which results in extreme vulnerability is a legitimate basis for departure). On these facts, we can not say that the sentencing court committed clear error.

To some extent, both sides have argued this case as if it presented the abstract question whether someone with an HIV infection, or with ARC, or with AIDS, is suffering from an “extraordinary physical impairment.” No doubt there is a sense in which an affirmative answer would be proper in all three of these situations. Certainly any condition which is or will in all likelihood become life-threatening is a serious physical impairment, and the attendant circumstances of AIDS and its precursors can justly be described as “extraordinary.” We think, however, that the phrase in the Guidelines should be interpreted according to its manifest purpose. Is the particular defendant’s physical condition such that he or she would find imprisonment more than the normal hardship? Would imprisonment subject him or her to more than the normal inconvenience or danger? Does the physical condition have any substantial present effect on the defendant’s ability to function? These questions must be answered for each individual defendant who claims the benefit of § 5H1.4. They do not have an all-purpose answer fitting every situation. We can agree that Johnson’s condition is tragic, that it will probably, as his counsel said below, lead to very serious physical difficulties within four years, and that it will almost certainly cause his death. It was the District Court’s duty, despite these sad facts, to assess Johnson’s condition at the time of sentencing. The Court performed this duty properly under the law, and its findings are not clearly erroneous.¹⁵ ■

III.

We affirm Rabins’s convictions and Johnson’s sentence.

1 . The Hon. Ronald E. Longstaff, United States District Judge for the Southern District of Iowa.

2 . Johnson had previously purchased methamphetamine from Rabins in October of 1992 while vacationing in California. Upon his return to Des Moines he gave some of this methamphetamine to Brooks as a gift.

3 . Rabins alleges that Brooks and Johnson maintained distinct drug sources during the period charged in the indictment. He states that from November of 1992 until February of 1993, Brooks’s sources were Jimmy John and Michael Guy Williams (Wilbur). He also alleges that Brooks was later supplied by Jimmy John and Ron Fulcaro.

4 . Rabins filed a motion under Rule 10(e) of the Federal Rules of Appellate Procedure to correct or modify the appellate record to include the transcript of Johnson's plea proceeding. The motion is granted.

5 . The government maintains that Johnson's test result was believed to be a false positive due to medication which Johnson was taking for the HIV virus. This is not a sufficient excuse. The government should have revealed all the facts. It could then have argued, perhaps persuasively, that the test was a false positive.

In his Rule 10(e) motion, Rabins alleges that the government's failure to disclose that Johnson had AIDS was also a Brady violation. We do not reach this issue because it was not raised below. Moreover, we cannot say that this evidence is likely to produce a different verdict.

6 . The District Court precluded testimony on the following topics:

1. The FBI investigation of Michael Guy Williams and Williams’s arrest for possession of methamphetamine by the Warren County Sheriff's Department;

2. Williams's receipt of drugs from California by Federal Express and UPS;

3. The arrest of Brad Payne and Jimmy Sparks in Las Vegas, Nevada, on February 2, 1993; and

4. The FBI’s inability to confirm a legitimate source of income for Williams.

7 . AIDS is defined as:

[A] secondary immunodeficiency syndrome resulting from HIV infection and characterized by opportunistic infections, malignancies, neu-rologic dysfunction, and a variety of other syndromes.

The Merck Manual 77 (Robert Berkow, M.D., et al. eds., 1992).

8 . ARC is defined as:

[A] constellation of chronic symptoms and signs manifested by HIV-infected persons who have not had the opportunistic infection or tumors that define AIDS. These symptoms, signs, and laboratory abnormalities include generalized lymphadenopathy, weight loss, intermittent fever, malaise, fatigue, chronic diarrhea, leukopenia, anemia, immune-mediated thrombocytopenia, oral hairy leukoplakia, and oral thrush (candidiasis).

Id. at 80-81.

9 . Section 3553(e) of Title 18, United States Code provides:

Limited authority to impose a sentence below a statutory minimum. — Upon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as minimum sentence so as to reflect a defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense. Such sentence shall be imposed in accordance with the guidelines and policy statements issued by the Sentencing Commission pursuant to section 994 of title 28, United States Code.

10 . Congress has since enacted 18 U.S.C. § 3553(f), which allows the sentencing court to depart from the statutory minimum under specified circumstances. Section 3553(f) applies to sentences imposed after September 23, 1994. The circumstances specified in the new law, however, do not include physical impairment.

11 . Section 5H1.4 provides in relevant part: "an extraordinary physical impairment may be a reason to impose a sentence below the applicable guideline range.”

12 . Judge Longstaff made the following comments:

So I recognize that there is at least a viable argument that AIDS with a deteriorating condition would provide grounds for departure. However, I am forced to view Mr. Johnson as he is today and with the medical records I have, and I must reluctantly find that Mr. Johnson, as of today, does not presently have an extraordinary physical impairment that would constitute grounds for departure under 5H1.4. I make that determination after reviewing the medical records you've submitted to me.

Sent. Tr. 32.

13 . When asked if he was currently receiving treatment for AIDS, Johnson testified:

I am under treatment for some anxiety, of course, and stress related to this case, but I’m not under any medication for HIV. Your body builds up a tolerance to the drugs used to treat HIV and AIDS, and it's best — they found it’s best to wait and avoid taking it until you have to so your body builds up a tolerance and then it doesn't do you any good later on.

Sent. Tr. 19.

14 .Johnson’s attorney stated:

Now, we’re hampered by the fact that A.L. at this point — I feel strange arguing this way. I’m glad that A.L. is not experiencing any serious illness, such that he has to be, you know, hospitalized or treated with AZT or other very strong drugs. In that respect, I'm glad that we’re not at that situation. But on the other hand, it's almost a certainty that he will get to that position in four years or less. Maybe four years, you know, will be the extent of his life expectancy. If he were in that situation where A.L. [was] experiencing serious illness, I'd ask the Court to depart all the way down to home detention so that he could live the final portion of his life in the care of his parents and his friends and so on, but we're not at that point.

Sent. Tr. 24.

15 . In the event that Johnson’s condition does deteriorate and he requires extraordinary medical care, the Director of the Bureau of Prisons may move the Court to make a sentence reduction under 18 U.S.C. § 3582(c)(1).