____________
No. 94-3463
____________
United States of America, *
*
Appellee, *
*
v. *
*
Jane Ellen Byrne, also known *
as Peaches, Jane Sanchez, *
Jane Mills, Jane Lehner, and *
Rose Byrne, *
*
Appellant. *
____________
Appeals from the United States
No. 94-3744 District Court for the
____________ Eastern District of Missouri
United States of America, *
*
Appellee, *
*
v. *
*
Anthony Luciano Santonelli, *
*
Appellant. *
____________
Submitted: September 12, 1995
Filed: May 14, 1996
____________
Before RICHARD S. ARNOLD, Chief Judge, and HEANEY and McMILLIAN,
Circuit Judges.
____________
McMILLIAN, Circuit Judge.
Jane Ellen Byrne and Anthony Luciano Santonelli appeal from final
judgments entered in the United States District Court1 for the Eastern
District of Missouri, upon jury verdicts finding them guilty of various
drug trafficking and related offenses. For reversal, Byrne argues the
district court erred in (1) finding her statement was voluntary, (2)
admitting audiotapes and transcripts of certain in-person and telephone
conversations, (3) refusing to compel disclosure of the tape-recording and
written report about an undercover meeting, (4) admitting testimony that
no one had submitted an administrative claim for certain cash seized at the
time of her arrest, and (5) calculating her criminal history category and
the drug quantity for purposes of sentencing. For reversal, Santonelli
argues the district court erred in (1) refusing to compel disclosure of
certain grand jury transcripts, (2) denying his request to subpoena
witnesses to testify on his behalf at sentencing, and (3) calculating the
drug quantity for purposes of sentencing. For the reasons discussed below,
we affirm Byrne’s conviction and sentence as to counts 1, 6 and 9 and
remand her case to the district court as to count 8 for further proceedings
in light of Bailey v. United States, 116 S. Ct. 501 (1995). We affirm
Santonelli’s conviction on all counts, but vacate his sentence and remand
his case to the district court for resentencing.
BACKGROUND FACTS
In September 1993 a confidential informant told local police that
Santonelli was selling heroin. An undercover officer was assigned to
investigate. The undercover officer met Santonelli and made arrangements
to buy heroin from him. The undercover officer recorded their telephone
calls and conversations.
1
The Honorable Jean C. Hamilton, Chief Judge, United States
District Court for the Eastern District of Missouri.
On September 30, 1993, the undercover officer met Santonelli at a
local restaurant parking lot. Santonelli sold the undercover officer 8
capsules of heroin and 2 capsules of cocaine. Santonelli gave the
undercover officer his home telephone number and the beeper number of a
“girl” named “Peaches” who Santonelli said worked for him.
On October 5, 1993, the undercover officer tried to contact
Santonelli but was unable to reach him by telephone. The undercover
officer called the beeper number. The beeper was answered by “Peaches.”
At that time the undercover officer did not know who “Peaches” was.
According to the government’s theory of the case, Byrne was “Peaches.” The
undercover officer asked Byrne to contact Santonelli. Byrne agreed to do
so. Santonelli later contacted the undercover officer and set up another
drug transaction at another restaurant parking lot. The undercover officer
waited at the parking lot, but Santonelli did not appear. The undercover
officer called Santonelli and arranged to meet him at an apartment complex.
The undercover officer met Santonelli as arranged and bought 10 capsules
of heroin from him.
The next day, October 6, 1993, the undercover officer and Santonelli
arranged another drug transaction at the apartment complex. The undercover
officer bought 10 more capsules of heroin from him.
On October 19, 1993, the undercover officer called Santonelli at home
but was unable to reach him. The undercover officer called the beeper
number. Byrne answered the beeper and agreed to meet the undercover
officer at a third restaurant parking lot. Byrne apparently contacted
Santonelli because Santonelli called the undercover officer and they
arranged to meet at a supermarket parking lot, where the undercover officer
bought 10 more capsules of heroin from him.
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On February 1, 1994, Drug Enforcement Administration (DEA) special
agent Richard Bauer discussed the investigation with the local police and,
on the basis of the information he received about the investigation,
obtained a search warrant for Byrne’s apartment. The search warrant was
executed the next day (February 2). The undercover officer was present.
The agents knocked on the door and announced their presence and purpose but
heard no answer. They forcibly entered the apartment and found Byrne in
the living room surrounded by illegal drugs and drug paraphernalia in plain
view, including heroin, cocaine, crack, a digital scale, and a hand-held
scale. The agents also found drug packaging materials, a triple-beam
balance scale, and a cutting agent (lactose). In addition, the agents also
found three firearms within Byrne’s reach, certain documents in
Santonelli’s name and papers that the agents described as “drug notes.”
The undercover officer (who was a woman) took Byrne into the kitchen
and searched her person but found no drugs or other evidence. Byrne asked
the undercover officer if she could get something to drink out of the
refrigerator. The undercover officer agreed. Byrne then drank a small
amount of a yellowish liquid. The undercover officer became alarmed that
Byrne might have swallowed “evidence” or something poisonous and, with the
assistance of the other agents, tackled Byrne to the floor and handcuffed
her. Byrne told the agents that the liquid was methadone and refused
medical treatment. Byrne was advised of her Miranda2 rights.
About a hour later the agents took Byrne to the local DEA office.
She was again advised of her Miranda rights. According to Bauer, Byrne
understood her rights, appeared to be unaffected by the methadone, and
agreed to cooperate with the investigation. Byrne again refused medical
attention. She then made a statement
2
Miranda v. Arizona, 384 U.S. 436 (1966).
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in which she identified Santonelli as one of her heroin sources (his name
was redacted from the statement at trial) and described her drug
distribution activities in detail, including estimates of the amounts of
heroin and cocaine she distributed weekly. Byrne was then released.
Santonelli was arrested later that same night (February 2) on
unrelated charges and was incarcerated pending trial.
On February 24, 1994, Byrne and Santonelli were indicted by a federal
grand jury and charged with conspiracy to distribute and possess with
intent to distribute heroin and cocaine, in violation of 21 U.S.C. § 846.
Santonelli was charged with distribution of heroin or cocaine or both, in
violation of 21 U.S.C. § 841(a) (counts 2-5, 7). Byrne was charged with
using a communication facility to facilitate distribution of heroin, in
violation of 21 U.S.C. § 843(b) (count 6), possession and use of firearms
in connection with drug trafficking, in violation of 18 U.S.C. § 924(c)
(count 8), and unlawful firearms possession, in violation of 18 U.S.C. §
922(g) (count 9).
On March 3, 1994, Byrne was arrested at another address, again
surrounded by drug paraphernalia, including drug notes, scales and about
$1300 in cash in her purse.
Pretrial suppression motions, including Byrne’s motion to suppress
her statement made to the DEA, were denied. The magistrate judge3 found
that the statement was voluntary. At trial, Santonelli testified in his
own defense; Byrne did not. Santonelli conceded his participation in the
drug transactions, but he denied any involvement in any conspiracy. Bauer
testified that the cash found in Byrne’s purse at the time of her arrest
on
3
The Honorable Lawrence O. Davis, United States Magistrate
Judge for the Eastern District of Missouri.
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March 3 represented drug proceeds and described the administrative
forfeiture process. As part of his testimony about the forfeiture process,
Bauer testified that no one had submitted a claim for the cash. A jury
found Byrne and Santonelli guilty on all counts.
Santonelli became dissatisfied with his appointed defense attorney
and represented himself at sentencing. (The district court appointed the
former defense attorney as Santonelli’s legal advisor.) On October 21,
1994, the district court considered and denied the defense motion to
subpoena certain witnesses to testify at the sentencing hearing. On
October 28, 1994, the district court considered and denied Santonelli’s
objections to the presentence report, including his objections to the
calculation of the drug quantities attributable to him.
The district court sentenced Byrne to a total of 197 months
imprisonment (137 months for conspiracy plus 60 months, to be served
consecutively, for the possession and use of a firearm in connection with
drug trafficking), 4 years supervised release, a fine of $1800, and a
special assessment of $200. The district court sentenced Santonelli to a
total of 175 months imprisonment, 4 years supervised release, a fine of
$1500, and a special assessment of $300. These appeals followed.
VOLUNTARINESS OF STATEMENT
Byrne first argues the district court erred in denying her motion to
suppress her statement made during custodial interrogation by DEA agents
and others. Byrne argues that her statement was not voluntary because she
was under the influence of a narcotic (methadone) at the time. She also
argues the circumstances were inherently coercive because the interrogation
room was very small and because the agents physically intimidated her,
denied her needed medical treatment, and threatened to arrest her if she
did not cooperate. Byrne argues that the fact that the
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interrogation was not tape-recorded or video-taped is suspicious and that
her appearance and behavior would have clearly supported her claim that she
was under the influence of methadone at the time.
Although we review the district court’s factual findings for clear
error, we review de novo the ultimate determination that Byrne voluntarily
made the statement. E.g., United States v. Makes Room, 49 F.3d 410, 414
(8th Cir. 1995) (noting same standard applied to assess validity of Miranda
waiver and voluntariness of statement under fifth amendment). We consider,
as did the district court, the totality of the circumstances in order to
determine whether the accused’s will was overborne. Id. We hold the
district court did not err in finding that Byrne voluntarily made the
statement. Assuming for purposes of analysis that the unknown liquid was
in fact methadone, the DEA agent testified that the methadone did not
appear to have affected Byrne and that she refused an offer of medical
attention. According to the DEA agent, Byrne was coherent, composed and
cooperative, although somewhat subdued, during the interrogation. She
stated that she understood her Miranda rights and agreed to answer the
investigators’ questions; she was not promised anything or threatened and
was released from custody shortly after she made the statement.
AUDIOTAPES AND TRANSCRIPTS
Byrne next argues the district court abused its discretion in
admitting the audiotapes and transcripts of in-person and telephone
conversations between the undercover officer and Santonelli because there
was inadequate foundation establishing their authenticity. Four of the
audiotapes were recordings of drug transactions between the undercover
officer and Santonelli (on September 30 and October 5, 6 and 19); the fifth
tape contained 10 telephone conversations between the undercover officer
and either Byrne or Santonelli. There are some gaps on the audiotapes and
in the transcripts.
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Byrne argues the audiotapes could have been altered or modified and thus
did not accurately reflect the conversations.
We review questions involving the admissibility of evidence,
including tape-recordings, for abuse of discretion. E.g., United States
v. Roach, 28 F.3d 729, 732-34 (8th Cir. 1994) (videotapes), citing United
States v. McMillan, 508 F.2d 101 (8th Cir. 1974) (discussing guidelines for
admitting audiotapes), cert. denied, 421 U.S. 916 (1975). We hold the
district court did not abuse its discretion in admitting the audiotapes and
transcripts. The existence of the audiotapes establishes that the
recording equipment was functioning properly and that the individual who
made the audiotapes was sufficiently skilled in the operation of the
recording equipment. United States v. Roach, 28 F.3d at 733. The
undercover officer who participated in the drug transactions and the
telephone calls identified the speakers on the audiotapes, described how
the audiotapes had been made, handled and stored, and how the audiotapes
had been reviewed against the transcripts, and stated that the audiotapes
had not been modified, edited or altered. The audiotapes themselves, the
undercover officer’s testimony and the absence of any evidence that the
audiotapes had been mishandled or otherwise tampered with established an
adequate foundation for the admission of the audiotapes and the
transcripts. The gaps in the audiotapes and the transcripts affected the
weight of the evidence, not its admissibility.
FAILURE TO COMPEL DISCLOSURE OF CONVERSATION AND WRITTEN REPORT
The indictment alleged that the conspiracy began sometime in
September 1993 but all the acts of distribution or other violations
occurred on or after September 30, 1993. However, the undercover officer
met Santonelli once before September 30, 1993, in the company of another
undercover agent and a confidential informant. The meeting was
tape-recorded, and the undercover officer also prepared a written report
about the meeting. The audiotape and the
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written report were not disclosed during discovery pursuant to Fed. R.
Crim. P. 16 or as Jencks Act material following the undercover officer’s
testimony pursuant to 18 U.S.C. § 3500. Byrne argues the district court
should have compelled disclosure of the audiotape and the written report
(and at the very least should have examined the audiotape and the written
report in camera before so ruling).
This issue involves what are essentially discovery matters which we
review for abuse of discretion. E.g., United States v. Dijan, 37 F.3d 398,
402 (8th Cir. 1994) (Jencks Act material), cert. denied, 115 S. Ct. 1418
(1995); United States v. Roach, 28 F.3d at 734 (Fed. R. Crim. P. 16).
Under the Jencks Act a criminal defendant is entitled to obtain, after the
direct testimony of a government witness, prior statements of the witness
which relate to the subject matter as to which the witness has testified.
We hold the district court correctly refused to compel disclosure of the
audiotape and the written report as Jencks Act material because the
pre-September 30 meeting was not the subject of the undercover officer’s
direct examination testimony and was only collateral or background
information. E.g., United States v. Pacelli, 491 F.2d 1108, 1120 (2d Cir.)
(statements which are strictly collateral to subject of testimony or only
peripherally related are not producible under Jencks), cert. denied, 419
U.S. 826 (1974). We also hold the district court correctly refused to
compel disclosure of the audiotape and the written report under Fed. R.
Crim. P. 16. The audiotape and the written report were not written or
recorded statements made by Byrne or a written record containing the
substance of any relevant oral statement made by Santonelli in response to
interrogation by any person then known to him as a government agent, Fed.
R. Crim. P. 16(a)(1)(A), and were not intended for use by the government
as evidence in chief at the trial, Fed. R. Crim. P. 16(a)(1)(C). In
addition, disclosure would have revealed the identity of the confidential
informant. See United States v. Roach, 28 F.3d at 734 (non-witness
confidential informant).
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COMMENT ON BYRNE’S RIGHT TO REMAIN SILENT
Byrne next argues the district court erred in admitting the DEA
agent’s testimony referring to the fact that no one had submitted an
administrative claim for the cash found in her purse at the time of her
arrest because it was an improper comment on her post-arrest silence. The
cash had been seized as drug proceeds and was subject to administrative
forfeiture. The DEA agent’s testimony about the administrative forfeiture
process came out on re-direct, following cross-examination questions
inferring that the purse in which the cash was found could have belonged
to one of the other occupants of the apartment. The DEA agent explained
that persons can submit claims for the return of seized property even after
the specified deadlines for doing so, but that a claim can be denied
because the seized property is drug proceeds. On re-direct examination,
the DEA agent testified that certain documents found in the purse in which
the cash was found connected the purse to Byrne.
We hold the district court did not abuse its discretion in admitting
this testimony. We do not think the DEA agent’s reference to the fact that
no one had submitted an administrative claim for the cash found in Byrne’s
purse constituted an indirect comment calculated to call attention to
Byrne’s post-arrest silence or that the jury would have naturally regarded
it as a comment on her post-arrest silence. Cf. United States v.
Montgomery, 819 F.2d 847, 853 (8th Cir. 1987) (whether prosecutor’s closing
argument constituted improper comments on defendant’s failure to testify).
The reference was indirect and had been elicited on re-direct in order to
clarify why the DEA agent believed the cash represented drug proceeds and
why the purse belonged to Byrne and not to one of the other occupants of
the apartment. The reference also rebutted the inference that Byrne did
not file a claim for the cash only because she did not receive timely
notice of the forfeiture proceedings.
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SENTENCING-- BYRNE
The district court excluded a prior conviction and sentence and
calculated Byrne’s criminal history category at level IV. The applicable
guideline sentencing range was 110-137 months. The district court
sentenced Byrne to 137 months imprisonment “because of [Byrne’s] past
involvement in criminal activity.” Because the 137-month sentence falls
within the applicable guideline sentencing range at criminal history
category level V (130-162 months), Byrne argues the 137-month sentence
indicates that the district court in fact improperly considered the prior
conviction and effectively sentenced her at criminal history category level
V. We disagree. Byrne’s analysis of the district court’s reasons for
imposing sentence is wholly speculative and is not supported by the record.
Byrne also argues the district court improperly adopted the estimates
of drug quantity contained in the presentence report. The drug quantities
were calculated on the basis of Byrne’s statement that she distributed 10
grams of heroin and 21 grams of cocaine per week during the conspiracy
(September 1993 through February 24, 1994). She argues the district court
should have excluded any drugs attributable to transactions during the
month of September 1993 because there was no evidence of any drug
trafficking before September 30, 1993. We hold the district court did not
err in including the month of September 1993 in calculating the quantity
of drugs. E.g., United States v. Roach, 28 F.3d at 735 (drug quantity
findings reviewed for clear error). The evidence showed that the
conspiracy was in existence in September 1993.
Finally, we note that in count 8 Byrne was convicted of the use of
three firearms during and in relation to a drug trafficking offense in
violation of 18 U.S.C. § 924(c). These firearms were found about 2 feet
from Byrne, on the floor near the sofa on which she had been sitting,
during the February 1994 search of her
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apartment. This appeal was argued in September 1995; subsequently, in
December 1995, the Supreme Court in Bailey v. United States, 116 S. Ct.
501, 506 (1995), clarified that the meaning of the term "use" in 18 U.S.C.
§ 924(c) requires "active employment." The district court has not had an
opportunity to consider the Bailey v. United States issue. For that
reason, although we affirm Byrne's conviction as to counts 1, 6 and 9, we
remand her case as to count 8 to the district court for further proceedings
in light of Bailey v. United States.
GRAND JURY MATERIALS
Santonelli argues that he was denied due process because the
district court denied his request to disclose certain grand jury
transcripts. Santonelli argues that the grand jury transcripts contained
potentially exculpatory material. The government’s attorney reviewed the
substance of the grand jury testimony in question with the district court
out of the hearing of the jury; this portion of the trial transcript was
then sealed. The district court denied disclosure on the ground that the
grand jury transcripts at issue were not exculpatory and thus not Brady4
material. This court has reviewed the sealed trial transcript, and we
agree with the district court that the grand jury transcripts at issue are
not exculpatory and thus not subject to disclosure under Brady v. Maryland,
373 U.S. 83 (1963). See Layton v. South Dakota, 918 F.2d 739, 742 (8th
Cir. 1990) (court of appeals reviewed in camera witness statements and
agreed with district court that they contained no Brady material), cert.
denied, 499 U.S. 953 (1991).
REQUEST TO SUBPOENA WITNESSES FOR SENTENCING
Santonelli argues the district court erred in denying his request to
subpoena Byrne, the undercover officer and the DEA agent
4
Brady v. Maryland, 373 U.S. 83 (1963).
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to testify at the sentencing hearing. Santonelli wanted to question them
about the different drug quantities referred to in trial testimony and in
their statements in the presentence report. For example, he argues that
Byrne’s statement about the drug quantities involved in the conspiracy
increased the base offense level from 12 (less than 5 grams of heroin;
maximum 37 months imprisonment) to base offense level 28 (maximum 175
months imprisonment), a five-fold increase. He acknowledges that in
general the right of confrontation does not apply to sentencing but argues
that his case falls within the narrow due process exception recognized in
United States v. Wise, 976 F.2d 393, 401 (8th Cir. 1992) (banc) (relevant
conduct greatly enhanced sentence), cert. denied, 507 U.S. 989 (1993).
We hold the district court did not abuse its discretion in denying
the request to subpoena witnesses to testify at the sentencing hearing.
First, this is not the kind of case contemplated by United States v. Wise.
Santonelli and Byrne were convicted of a drug-trafficking conspiracy, and
Byrne’s statement about the drug quantities involved in the conspiracy did
not so greatly increase the sentence that would have otherwise been imposed
so as to trigger due process concerns. The undercover officer and the DEA
agent testified at trial about Byrne’s statement and were subject to
thorough cross-examination. In addition, Byrne had indicated through
defense counsel that, if subpoenaed, she would have invoked her fifth
amendment privilege and refused to testify.
SENTENCING-- SANTONELLI
Santonelli argues the district court improperly adopted the
presentence report’s calculation of the drug quantities attributable to
him. We review the district court’s drug quantity findings under the
clearly erroneous standard of review. E.g., United States v. Roach, 28
F.3d at 735. Because we agree with one
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of Santonelli’s arguments, we vacate his sentence and remand the case to
the district court for resentencing.
Santonelli argues the district court erred in attributing to him the
drugs seized in Byrne’s apartment at the time of her arrest on March 3,
1994, because he had been in custody since his arrest on February 2, 1994.
The government’s attorney stated that it was his understanding that those
drugs had not been included in the presentence report’s calculations but
that, even if those drugs were excluded from the calculations, Santonelli’s
offense level would not change.5 This information was not correct. The
presentence report calculation of drug quantity did include these drugs and
their inclusion did change the offense level. Including the drugs seized
from Byrne’s apartment at the time of her arrest on March 3, 1994, 2.7
grams of heroin and 2.5 grams of cocaine, increased the total drug quantity
attributable to Santonelli to slightly more than 400 kilograms of marijuana
equivalents and thus increased the offense level from 26 to 28. Because
the sentence may have been affected by this incorrect information, we
vacate Santonelli’s sentence and remand the case to the district court for
resentencing.
We do not agree with Santonelli’s other arguments and address them
briefly. Like Byrne, Santonelli also argues the district court should have
excluded any drugs attributable to transactions during the month of
September 1993 because there was no evidence of any drug trafficking before
September 30, 1993. We hold the district court did not err in including
the month of September 1993 in calculating the quantity of drugs. The
evidence showed that the conspiracy was in existence in September 1993.
5
This representation was based on mistaken information from
the probation officer. Brief for Appellee at 43-44 n.15.
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Santonelli also argues the 1.6 grams of crack cocaine found in
Byrne’s apartment at the time of her arrest should not have been attributed
to him. He argues there was no evidence that the crack cocaine was part
of the conspiracy and that it was more likely Byrne’s personal supply.
Including the crack cocaine increased the total drug quantity to slightly
more than the 400-kilogram minimum of marijuana equivalents required for
offense level 28. U.S.S.G. § 2D1.1(c)(6). We cannot say including the
crack cocaine in the calculation of drug quantity was clearly erroneous.
It was reasonably foreseeable that crack cocaine, a form of cocaine, would
be distributed by the members of a conspiracy that distributed heroin and
cocaine.
Santonelli also argues that the presentence report “double-counted”
in calculating the drug quantity because the probation officer added the
5.4 grams of cocaine and the 7.78 grams of heroin seized from Byrne’s
apartments to the estimate of 10 grams of heroin and 21 grams of cocaine
per week for the 25-week duration of the conspiracy. He argues that the
drugs actually seized should have been subtracted from, not added to, the
estimated quantity. Assuming for purposes of analysis that it was
“double-counting” to add the drugs actually seized to the estimated
quantity of drugs based on Byrne’s statement, we hold that the error was
harmless. The presentence report calculated the total drug quantity
involved in the conspiracy on the basis of smaller amounts than Byrne
reported in her statement (10 grams of heroin per week rather than 10.5
grams, a difference of 12.5 grams over the 25-week conspiracy). That
difference alone would substantially offset the double-counting. In
addition, the presentence report did not include the drugs represented by
the money seized in the calculation of the total drug quantity or any
enhancements for transactions near a protected location or obstruction of
justice in the calculation of the offense level. Including these factors
would have more than offset the double-counting.
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Santonelli also argues that the district court should not have
attributed distribution of 21 grams of cocaine per week to him because
there was no evidence that Byrne’s cocaine distribution was reasonably
foreseeable to him. He argues that he actually sold less than 1 gram of
cocaine to the undercover officer and that Byrne had identified him only
as one of her two sources of heroin, not cocaine. We cannot say
attributing to Santonelli the cocaine distributed by Byrne was clearly
erroneous. Byrne’s distribution of cocaine was conduct reasonably
foreseeable as part of the conspiracy.
Accordingly, we affirm Byrne’s conviction and sentence as to counts
1, 6 and 9. As to count 8, we remand her case to the district court for
further proceedings in light of Bailey v. United States. We affirm
Santonelli’s conviction on all counts, vacate his sentence and remand his
case to the district court for resentencing.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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