United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 02-1432
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Bruce Oleson, *
*
Appellant. *
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Submitted: October 8, 2002
Filed: November 20, 2002
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Before HANSEN, Chief Judge, and HEANEY and MORRIS SHEPPARD ARNOLD,
Circuit Judges.
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HEANEY, Circuit Judge.
Bruce Oleson was convicted of conspiracy to distribute methamphetamine and
marijuana, possession of methamphetamine and marijuana with intent to distribute,
and possession of a firearm as an unlawful user of controlled substances.1 He
contests the sufficiency of the evidence on each conviction, and also contends the
1
Oleson was also convicted of simple possession of amphetamine, but does not
contest this conviction on appeal.
district court2 erred in: denying his request for a hearing on his defective search
warrant claim; admitting evidence that was not directly connected to him; and
determining his sentencing offense level. We affirm.
BACKGROUND
On December 10, 1999, a search warrant was executed on Bruce Oleson’s
property. His property included a small dwelling, a number of outbuildings, and a
tract of land. The search uncovered twelve guns, a scale, 2.33 grams of amphetamine,
38.15 grams of methamphetamine, and several pounds of marijuana.
On December 16, 1999, Oleson was charged in state court with a number of
offenses related to the execution of the above-referenced search warrant. These
charges were dismissed by the state on August 31, 2000. Oleson was then charged
with federal violations on May 21, 2001. He went to trial on all counts.
At trial, Dixie Rodgers testified that she helped to arrange for Oleson to sell
methamphetamine to Gil Gavronsky. According to Rodgers, Gavronsky, who had
died by the time of trial, did not use methamphetamine himself, but wanted to
distribute the drug in order to make his business more financially stable. Over the
next several weeks, Gavronsky made six to eight trips to Oleson’s residence, each
time purchasing one to two ounces of methamphetamine for roughly $1,100 per
ounce.
Tracy Slycord testified that Oleson was his steady source of drugs beginning
in 1997. As Slycord’s habit intensified, the amount of drugs he would buy increased.
2
The Honorable Michael J. Melloy, United States District Court for the
Northern District of Iowa. Judge Melloy has since been appointed to the United
States Court of Appeals for the Eighth Circuit.
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Eventually, he was buying one to four ounces of methamphetamine at a time, usually
at a price of $1,000 to $1,200 per ounce. He testified that he got the drug to support
his habit, but would also sell it. Stacey Carroll-White, an acquaintance of Rodney
McAlister and Tracy Slycord, testified that McAlister sold marijuana and
methamphetamine, and that he would get his drugs from Oleson. She further stated
that she would regularly see McAlister in possession of four ounces of
methamphetamine.
Part of the government’s physical evidence at trial consisted of drugs that were
seized from McAlister and Slycord. There was no evidence that any of these drugs
were bought from Oleson, and Slycord affirmed at trial that the drugs were purchased
from a different dealer.
DISCUSSION
I. SUFFICIENCY OF THE EVIDENCE
Oleson claims that the evidence was insufficient to convict him of conspiracy,
possession with intent to distribute methamphetamine and marijuana, and possession
of a firearm while an unlawful user of controlled substances. In reviewing the
sufficiency of the evidence,
we view the evidence in a light most favorable to the verdict, giving it
the benefit of all reasonable inferences. Reversal is required only where
no reasonable jury could have found a defendant guilty beyond a
reasonable doubt. “[T]he standard to be applied to determine the
sufficiency of the evidence is a strict one, and the finding of guilt should
not be overturned lightly.”
United States v. Maynie, 257 F.3d 908, 916 (8th Cir. 2001) (citations omitted).
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To support a conspiracy conviction, the government must show that: a
conspiracy existed for an illegal purpose; the defendant knew of the conspiracy; and
the defendant knowingly joined in it. Id. While “[e]ither direct or circumstantial
evidence can provide the basis for a conviction,” United States v. Jimenez-Perez, 238
F.3d 970, 973 (8th Cir. 2001), evidence in a conspiracy case will often be
circumstantial due to an illegal conspiracy’s “necessary aspect of secrecy,” United
States v. Robinson, 217 F.3d 560, 564 (8th Cir. 2000) (quoting United States v.
Gooden, 892 F.2d 725, 729 (8th Cir. 1989)); see also United States v. Hoelscher, 914
F.2d 1527, 1533 (8th Cir. 1990) (“The agreement may be established by
circumstantial evidence, as conspiracies seldom lend themselves to proof by direct
evidence.” (quoting United States v. Kaminski, 692 F.2d 505, 513 (8th Cir. 1982))).
Oleson suggests that the government did no more than establish a buyer/seller
arrangement between himself and his customers. The evidence simply does not
support such a conclusion. The government presented ample testimony that Oleson
was selling methamphetamine to McAlister, Slycord, and Gavronsky. He would sell
at roughly the same rate, between $1000 and $1200 per ounce, and usually sold at
least an ounce at a time, and often up to four ounces at once. In one month,
Gavronsky alone completed six to eight purchases of methamphetamine, each time
obtaining one or two ounces of methamphetamine for resale. Testimony also
established that Slycord’s standard purchase from Oleson was an ounce of marijuana
and four ounces of methamphetamine. Considering the amount of contraband in
these transactions in combination with the testimony of frequent standardized sales,
we conclude there is sufficient to support an inference that Oleson was part of the
conspiracy to distribute narcotics. See United States v. Trotter, 889 F.2d 153, 156
(8th Cir. 1989) (holding even small amount of drugs may support inference of dealing
when combined with other evidence consistent with distribution).
To convict Oleson of possession of methamphetamine and marijuana with
intent to distribute, the government must show that Oleson possessed both drugs with
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the intent to distribute them. United States v. Johnson, 18 F.3d 641, 647 (8th Cir.
1994). Some factors that may lead to a conclusion that the drugs were meant for
distribution include the quantity of drugs, packaging material, paraphernalia, and the
presence of guns. United States v. Lopez, 42 F.3d 463, 467 (8th Cir. 1994).
We have previously held that intent to distribute may also be inferred “solely
from the possession of large quantities of narcotics.” United States v. Ojeda, 23 F.3d
1473, 1476 (8th Cir. 1994) (quoting United States v. Schubel, 912 F.2d 952, 956 (8th
Cir. 1990)). The search of Oleson’s property uncovered several pounds of marijuana
in a locked storage compartment.3 Even accepting Oleson’s argument that much of
the contraband was unmarketable due to water damage, the remaining dry marijuana
totaled well over twenty pounds, with some being highly refined. The amount alone
here supports the conviction for possession with intent to distribute marijuana.
As for the methamphetamine, the police recovered over an ounce of the drug
during the search of Oleson’s property. This same search produced twelve firearms
and a scale. Moreover, the government presented an overwhelming amount of
testimony that Oleson was in the business of selling methamphetamine. Taken in the
light most favorable to the jury verdict, this evidence is sufficient to sustain the
conviction for possession with intent to distribute methamphetamine.
With regard to his conviction for being a drug user in possession of a firearm,
Oleson again asks us to overturn the jury verdict. In order to sustain a conviction,
there must be evidence that Oleson was an unlawful user of or addicted to controlled
substances during the same period of time that he possessed firearms. 18 U.S.C. §
922(g)(3); United States v. McIntosh, 23 F.3d 1454, 1458 (8th Cir. 1994).
3
Although there is some question as to whether this storage compartment was
actually on Oleson’s property or his neighbor’s, the key to it was found in Oleson’s
house, supporting the jury’s conclusion that it was, in fact, his.
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The evidence of firearm possession here is strong; the police found twelve guns
on Oleson’s property during execution of their search warrant. Although there was
no direct evidence that Oleson was using drugs at the exact moment of the search, the
government did show that a user quantity of amphetamine was laid out on Oleson’s
table, that he lived in the house alone, and that he often used drugs with his
customers. These factors taken together support the jury’s conclusion that Oleson
was a drug user during the same period he possessed the guns.
II. DENIAL OF OLESON’S MOTION FOR A SUPPRESSION HEARING
Oleson next contends the district court erred in denying his motion for a
hearing on whether the warrant issued in his case was defective. In order to receive
a hearing on a defective warrant issue, the defendant must make some preliminary
showing that the warrant application contained false statements or omissions that
were material to the finding of probable cause. Franks v. Delaware, 438 U.S. 154,
155-56 (1978).
Oleson claims the government intentionally misled the issuing judge in its
warrant application. He directs us to a portion of the application which states that he
had a history of using drugs since 1986, and that Stacey Carroll-White had gone with
Tracy Slycord to get drugs from Oleson at one time. Neither statement is actually
false: Oleson had in fact been convicted of possession of marijuana in 1986, and
Carroll-White had gone with Slycord to get drugs from Oleson once–she just stayed
in the vehicle while the transaction took place. Moreover, neither of these statements
is so misleading as to be considered false.
As to material omissions, Oleson claims that the application should have stated
that some of the sources of the applicant’s information–a confidential informant,
Slycord, and Carroll-White–were facing criminal charges. However, a fair read of the
application in its entirety makes this point clear. The application states that Slycord
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and Carroll-White’s shared residence was raided on December 4, 1999, and that
officers found a substantial amount of methamphetamine therein. It further states that
the signing officer interviewed Carroll-White and Slycord two days later, on
December 6. The issuing judge could reasonably infer that Carroll-White and
Slycord were likely to face serious drug charges.
Moreover, even if the warrant application were corrected as Oleson suggests,
probable cause would still exist to support its issuance. See United States v. Jacobs,
986 F.2d 1231, 1233-34 (8th Cir. 1993) (holding that hearing on warrant’s validity
required only where defendant can show warrant would not have established probable
cause if corrected). The district court did not err in denying Oleson a hearing on this
matter.
III. CLAIMS OF EVIDENTIARY ERROR.
At trial, the district court admitted large quantities of drugs that had been
seized from Slycord and McAlister. By all accounts, these drugs were not connected
to Oleson. Oleson claims that the district court erred in admitting this evidence, and
that the error was so grave as to mandate a new trial. We review the district court’s
evidentiary rulings for an abuse of discretion. United States v. Gonzales, 90 F.3d
1363, 1370 (8th Cir. 1996). “Even where we find that the district court has abused
its discretion with respect to an evidentiary ruling, we will not reverse the conviction
if the error was harmless.” United States v. Lupino, 301 F.3d 642, 645 (8th Cir.
2002). “The test for harmless error is whether the erroneous evidentiary ruling had
a substantial influence on the jury’s verdict.” Id. (quoting Peterson v. City of
Plymouth, 60 F.3d 469, 475 (8th Cir. 1995) (internal quotation marks omitted).
We have serious concerns about the propriety of admitting drugs that, by all
accounts, were not connected to the defendant. We note, however, that the jury was
well aware that Oleson was not the source for these drugs, because Slycord testified
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to that effect. Given the strong weight of the other evidence of Oleson’s guilt, we
find that any error here was harmless, and does not necessitate a new trial.
IV. SENTENCING DETERMINATIONS.
The district court attributed a drug quantity of over 500 grams of
methamphetamine to Oleson, leading to an offense level of 32. Oleson claims he
should have been sentenced using an offense level of 30. We review a district court’s
sentencing determinations for clear error. United States v. Frazier, 280 F.3d 835, 851
(8th Cir. 2002).
At sentencing, Oleson conceded that Dixie Rodgers had stated that she helped
Gil Gavronsky buy at least eight ounces of methamphetamine from him. Oleson
further conceded that Tracy Slycord had admitted to buying at least eight ounces of
methamphetamine. Together, this amounts to sixteen ounces, or 453.6 grams of
methamphetamine. When the 38.5 grams of methamphetamine found during the
search is added to this amount, Oleson is now responsible for 492.1 grams.
Considering the other testimony of drug sales and the several pounds of marijuana
that was seized, we cannot say the district court erred in attributing another eight
grams of methamphetamine, or its marijuana equivalent, to Oleson.
CONCLUSION
The evidence against Oleson was sufficient to sustain the convictions for
conspiracy to distribute methamphetamine and marijuana, possession with intent to
distribute methamphetamine and marijuana, and possession of a firearm by an
unlawful user of controlled substances. The district court did not err in denying
Oleson a hearing on his defective warrant claim. As to evidentiary error from
admitting drugs not connected to Oleson, we find that any error was harmless. Lastly,
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the district court’s sentencing determination was correct. Accordingly, we affirm the
district court in all respects.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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