United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-2864
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Chris L. Turner, *
*
Defendant - Appellant. *
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Submitted: February 8, 2010
Filed: May 10, 2010
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Before LOKEN, Chief Judge,* GRUENDER and BENTON, Circuit Judges.
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LOKEN, Chief Judge.
After a bench trial, Chris L. Turner was convicted of conspiring to distribute
more than 100 kilograms of marijuana in violation of 21 U.S.C. §§ 841 and 846.
Because of a prior felony drug conviction, this quantity finding subjected him to a
mandatory minimum sentence of 120 months in prison. See § 841(b)(1)(B)(vii). The
*
The Honorable James B. Loken stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on March 31,
2010. He has been succeeded by the Honorable William Jay Riley.
district court1 imposed the mandatory minimum sentence. Turner appeals, arguing the
evidence was insufficient to support the quantity determination. We affirm.
The government’s five witnesses and trial exhibits established the following
facts, viewing the evidence, as we must, in the light most favorable to the verdict. In
late October 2007, interdiction officers posted drug checkpoint warning signs just
before a rest stop exit on Interstate 80 near Bettendorf, Iowa, and watched in the
parking area for people who might be exiting to avoid the checkpoint. Turner pulled
into the area, driving a pickup truck with Nevada license plates, and stared at the
officers for a prolonged period. Two agents approached and told Turner they were
looking for guns and drugs. Turner answered evasively, then consented to a search
of the truck. When the agents noted a locked cover on the bed of the truck, Turner
gave them a key and said, “It’s in there.” Agents found 104 pounds -- about 47
kilograms -- of high-grade marijuana. The search also yielded three cell phones, truck
maintenance receipts, and a duffel bag containing $1,000.
After he was arrested and given Miranda warnings, Turner told interviewing
agents that he was a disabled former construction worker who transported drugs to
support his lifestyle; that he was traveling from Nevada to Vermont; that the 104
pounds of marijuana found in the truck were his; that he was being paid $20,000; and
that he had made two prior trips and been paid $20,000 for each. Turner explained
how he received drugs to be transported. He would go to a restaurant and leave his
truck in the parking lot; while inside, an unknown person would take the vehicle, load
it with drugs, and return it to the parking lot. He declined to disclose where these
transactions had occurred. The agents did not ask Turner what type or quantity of
drugs he transported on the two prior trips. An investigator testified that 104 pounds
of marijuana had a wholesale value of about $520,000; that $20,000 would not be paid
1
The HONORABLE JOHN A. JARVEY, United States District Judge for the
Southern District of Iowa.
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to transport a small quantity of drugs; and that it was unlikely a first-time drug “mule”
would be entrusted with such a valuable load.
Records from one of Turner’s cell phones recorded 1,689 contacts between
March 1 and October 25, 2007, with a Nevada number that Turner’s address book
identified as belonging to “Bro.” On October 23, he received a series of messages
from Bro concerning a rendezvous with unknown individuals at an unnamed location.
The series finished with a message saying “B SAFE I GAVE N EXTRA GRAND,”
which corresponded to the $1,000 found in Turner’s truck. After this exchange,
Turner received eight text messages from Bro before his arrest on the 25th saying
“OK” or “Well.” An investigator testified that it is common for those involved in
drug trafficking to periodically send messages checking on the status of their couriers.
The government also presented evidence that North Las Vegas police stopped
Turner for a traffic violation in August 2007, and a search of his Dodge Caravan
uncovered $10,000 in a cell phone box, $8,000 in a plastic bag, and a bank record of
a $1,000 deposit the previous day, plus a small amount of cocaine, five cell phones,
and a two-way radio. A drug dog alerted on the money, and the money was seized as
drug proceeds. Turner pleaded guilty to possession of cocaine. The government
introduced maintenance records showing that the truck had been driven 6,185 miles
from July 13, 2007 to September 22, 2007; 3,544 miles from September 25 to October
11; and 3,612 miles from October 20 to Turner’s October 25 arrest.
Reviewing this evidence in detail, and emphasizing the seizure of 47 kilograms
and Turner’s admission that he made two other trips and was paid $20,000 for each
of the three trips, the district court found beyond a reasonable doubt that Turner was
guilty of conspiring to distribute more than 100 kilograms of marijuana. Turner
argues on appeal that the evidence was insufficient to prove this drug quantity beyond
a reasonable doubt.
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At the outset, we note that counsel for both parties applied the wrong burden
of proof to this issue in the district court and on appeal. At the start of the bench trial,
defense counsel in opening statement conceded that Turner “is guilty of possession
with intent to deliver” 47 kilograms of marijuana. Counsel continued:
the reason we’re doing a bench trial is that we believe the Court will
have to make a finding, a finding beyond a reasonable doubt that this
involved more than 100 kilograms . . . . I believe Apprendi [v. New
Jersey, 530 U.S. 466 (2000),] applies in this case and that it has to be a
beyond a reasonable doubt finding above 100 kilograms.
Unfortunately, the prosecutor did not object, and the trial proceeded on this
basis, with the court ultimately making its quantity finding beyond a reasonable doubt.
But defense counsel misstated controlling law of this circuit. Drug quantity under 21
U.S.C. § 841(b)(1) is not an element of the crime unless it increases the statutory
maximum punishment. United States v. Webb, 545 F.3d 673, 678 (8th Cir. 2008),
cert. denied, 129 S. Ct. 2013, 2021 (2009). The fact that the drug quantity charged in
the indictment subjected Turner to a ten-year mandatory minimum sentence “does not
make Apprendi applicable” to the drug quantity determination. United States v.
Serrano-Lopez, 366 F.3d 628, 638 n.9 (8th Cir. 2004). For sentencing purposes, a
jury’s quantity determination “is practically irrelevant,” id. at 638, because at
sentencing the district court applies a preponderance-of-the-evidence standard and
“may impose a sentence based on a drug quantity determination greater than that
found by the jury so long as the sentence does not exceed the statutory maximum of
the convicted offense.” Webb, 545 F.3d at 677. The same principles apply after a
bench trial. Therefore, while the district court must find beyond a reasonable doubt
the statutory elements of a drug conspiracy offense, as set forth in 21 U.S.C. §§ 841(a)
and 846, the court need only base its drug quantity determination on the
preponderance of the evidence, whether that determination is made at trial or at
sentencing. See United States v. Villareal-Amarillas, 562 F.3d 892, 897-98 (8th Cir.
2009).
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Our review of a district court’s drug quantity determination is for clear error,
applying the preponderance-of-the-evidence standard, “even if the evidence of
quantity were insufficient for purposes of a jury’s quantity calculation.” Serrano-
Lopez, 366 F.3d at 638. Here, the district court included a drug quantity
determination in its fact findings at the conclusion of the bench trial, and then applied
that finding at sentencing. The same applicable principles dictate that our appellate
review of that determination must be for clear error, applying the preponderance
standard. (Our opinion in United States v. Rolon-Ramos, 502 F.3d 750 (8th Cir.
2007), in reversing a jury’s drug quantity determination, left this issue unaddressed,
doubtless because of the way the case was presented on appeal.)
After careful review of the trial record, we conclude that the district court’s
determination that Turner was part of a conspiracy involving more than 100 kilograms
of marijuana must be affirmed, whether we apply the standard for reviewing
sufficiency of the evidence after a bench trial, see United States v. Kain, 589 F.3d 945,
948 (8th Cir. 2009), or the clearly erroneous standard for reviewing drug quantity
findings at sentencing. Turner was apprehended transporting 47 kilograms of high-
grade marijuana across the country for a payment of $20,000. He confessed to
making two prior trips for the same payment. The government introduced substantial
evidence corroborating on-going drug trafficking earlier in 2007, and testimony that
it was unlikely he would have been paid $20,000 for substantially smaller quantities.
This evidence was more than sufficient for a reasonable judge or jury to find that
Turner participated in a conspiracy to distribute more than 100 kilograms of
marijuana.
The judgment of the district court is affirmed.
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