United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-2005
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Gary Zierke, Jr., *
*
Appellant. *
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Submitted: March 9, 2010
Filed: August 24, 2010
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Before SMITH, BENTON, and SHEPHERD, Circuit Judges.
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SMITH, Circuit Judge.
A jury found Gary Zierke Jr. ("Zierke") guilty of conspiracy to distribute and
possess with the intent to distribute 50 grams or more of methamphetamine, in
violation of 21 U.S.C. § 846 ("Count 1"), and distribution of methamphetamine, in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1) ("Count 2"). Zierke filed objections to
the presentence investigation report (PSR) objecting, in part, to the quantity of drugs
for which he was found responsible and the resulting base offense level, as well as
a three-level increase for his role in the offense. The district court1 denied Zierke's
objections to the PSR and sentenced him to 360 months' imprisonment as to Count
1
The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
1 to run concurrent to three years of supervised release as to Count 2. On appeal,
Zierke argues that the district court committed five errors: (1) admitting a recorded
telephone conversation; (2) admitting statements Zierke made to law enforcement
agents; (3) finding that there was sufficient evidence to establish that he was involved
in a conspiracy to distribute methamphetamine; (4) finding that he was responsible
for 574 grams of methamphetamine; and (5) imposing a three-level leadership
enhancement. We disagree with each of Zierke's contentions and affirm the district
court's judgment.
I. Background
Zierke was charged in a two-count indictment with conspiracy to distribute and
possess with the intent to distribute 50 grams or more of methamphetamine between
October 1, 2007, and April 17, 2008, in violation of § 846, and distribution of
methamphetamine on or about February 14, 2008, in violation of §§ 841(a)(1) and
(b)(1). Pursuant to Federal Rule of Evidence 404(b), the government filed a notice of
intent to introduce evidence at trial. Specifically, the government outlined its intent
to introduce evidence related to law enforcement interviews with Zierke while he was
incarcerated in the Nebraska Department of Corrections in 2006 and 2007. During
those interviews, Zierke told investigators that he planned to sell drugs following his
release from prison. The government thereafter filed a second notice of intent to
introduce Rule 404(b) evidence. In this notice, the government stated its intent to
introduce evidence regarding an October 31, 2008 phone call Zierke made to his son,
Gary Zierke III ("Zierke III") while Zierke was incarcerated in the Douglas County
Department of Corrections. During the phone call, Zierke intimated his desire to harm
two witnesses who would testify against him.
Zierke's trial lasted four days and culminated with the jury finding Zierke guilty
of Counts 1 and 2. The United States Probation and Pretrial Services office prepared
a PSR. Zierke filed objections to the PSR, objecting, in part, to the quantity of drugs
for which he was found responsible and the resulting base offense level, as well as
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a three-level increase for his role in the offense. The district court denied Zierke's
objections and sentenced him to 360 months' imprisonment as to Count 1 to run
concurrent to three years of supervised release as to Count 2.
II. Discussion
A. Admission of Recorded Phone Call
On appeal, Zierke argues that the district court should have excluded a
recorded telephone conversation where he intimated his desire that his son harm
witnesses that he believed had turned against him. First, Zierke contends that the
phone call encouraged the jurors to fear him and convict him because he is a danger
to society or is simply a bad man. Second, Zierke contends that the phone call was not
relevant to a material issue. Zierke maintains that his dislike of people talking or lying
about him does not provide probative evidence of whether he had entered into an
agreement with others to distribute methamphetamine. Third, Zierke notes that this
call occurred after he had been in jail for more than seven months. Finally, Zierke
contends that the prejudice from introducing the call substantially outweighed any
probative value that the testimony may have provided about whether he was involved
in a drug conspiracy and should have been excluded under Federal Rule of Evidence
403.
In assessing a district court's evidentiary rulings, we review for an abuse
of discretion. The trial court has broad discretion in determining the
relevancy and admissibility of evidence. Under Rule 403, great
deference is given to a district court's balancing of the relative value of
a piece of evidence and its prejudicial effect.
United States v. Jiminez, 487 F.3d 1140, 1145 (8th Cir. 2007) (internal quotations and
citations omitted).
Zierke's argument is without merit. Rule 403 provides in pertinent part:
"Although relevant, evidence may be excluded if its probative value is substantially
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outweighed by the danger of unfair prejudice . . . ." "[E]vidence is not unfairly
prejudicial merely because it tends to prove a defendant's guilt." United States v.
Boesen, 541 F.3d 838, 849 (8th Cir. 2008). In turn, Rule 404(b) provides that
"[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character
of a person in order to show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, [or] plan . . . ."
"We have ruled a number of times . . . that evidence of death threats against
witnesses or other parties cooperating with the government is generally admissible
against a criminal defendant to show consciousness of guilt of the crime charged."
United States v. DeAngelo, 13 F.3d 1228, 1232 (8th Cir. 1994). "Moreover, we have
noted that as direct evidence of the crime charged, the evidence of threats is not even
Rule 404(b) evidence." Id. Finally, "[t]his court has been reluctant to hold that
evidence was unfairly prejudicial when the district court gave an appropriate
cautionary instruction." United States v. Davis, 154 F.3d 772, 780 (8th Cir. 1998).
The district court gave a limiting instruction to the jury regarding the recordings of
Zierke.2 Zierke's comments to his son indicated a desire that the son eliminate
witnesses against him. Such testimony is probative of his consciousness of guilt and
2
The district court instructed the jury as follows:
Number one, you may only consider the statements of Gary Zierke, the
defendant, on these recordings. You may only use the statements of the
other people to understand the statements of the defendant, Gary Zierke.
Number two, as I've previously instructed you, transcripts are only aids
and not evidence. It is up to you to determine what was said on the
recordings.
Number three, to the extent the recordings reveal crimes or wrongs not
charged in this case, you may only consider such evidence in
determining whether Gary Zierke, the defendant, had the intent to enter
into the alleged conspiracy charged in Count I.
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also prejudicial. Like the district court, however, we do not consider its probative
value to have been outweighed by unfair prejudice when, as here, the district court
cautioned the jury with a limiting instruction. Accordingly, we hold that the district
court did not abuse its discretion in admitting the phone recordings.
B. Zierke's Statement to Police
Second, Zierke contends that evidence of him attempting to gain a benefit from
officers did not provide any insight as to any material issue. Zierke submits that this
evidence should not have been presented to the jurors and that its prejudicial impact
was immense. In an interview with Special Agent John Dougherty of the Federal
Bureau of Investigation, Zierke expressed his willingness to sell methamphetamine
to aid the government in its gang interdiction efforts. When the government balked
at the proposed undercover buy, Zierke told them that he would proceed to sell the
methamphetamine anyway.
We find that the district court properly admitted the statement under Rule
404(b). "[Rule 404(b)] evidence is admissible if it is (1) relevant to a material issue;
(2) similar in kind and close in time to the crime charged; (3) proven by a
preponderance of the evidence; and (4) if the potential prejudice does not
substantially outweigh its probative value." United States v. Oman, 427 F.3d 1070,
1075 (8th Cir. 2005). First, because Zierke was expressing his intent to engage in a
future methamphetamine deal, the statement was relevant to his intent to engage in
methamphetamine transactions. Second, the testimony was similar in kind and close
in time to the crime charged. Third, sufficient testimonial evidence was presented to
support a finding that Zierke made the statements to law enforcement. Finally, in light
of the other unobjectionable evidence, the potential unfair prejudice from admitting
the statement did not substantially outweigh the statement's probative value.
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C. Sufficiency of the Evidence
Third, Zierke contends that the record evidence was insufficient to establish
that he was involved in a conspiracy to distribute methamphetamine.
"We review de novo the sufficiency of the evidence to sustain a conviction,
examining the evidence in the light most favorable to the jury verdict and giving the
verdict the benefit of all reasonable inferences." United States v. Montano, 506 F.3d
1128, 1132 (8th Cir. 2007). "We will reverse the jury verdict only if no reasonable
jury could have found [Zierke] guilty." Id.
To support a conspiracy conviction, the government must show that (1) a
conspiracy existed for an illegal purpose; (2) Zierke knew of the conspiracy; and (3)
Zierke intentionally joined the conspiracy. United States v. Becker, 534 F.3d 952, 957
(8th Cir. 2008). In the instant case, at least five witnesses3 testified to directly
engaging in multiple methamphetamine transactions with Zierke. Furthermore, a
government informant completed a controlled purchase with Zierke, which
investigators observed. Finally, police officers executed a search warrant at Zierke's
residence the day of the controlled purchase where they recovered several baggies,
3
Investigator Bradley Hand of the Nebraska State Patrol testified about a
controlled purchase of methamphetamine from Zierke on February 14, 2008.
Investigator Richard Conrad of the Hall County Sheriff's Department testified about
the warrant search of Zierke's home and evidence obtained. Investigator Mark
Wiegart of the Grand Island Police Department's tactical response team also testified
about the search, including methamphetamine found in Zierke's pocket. Timothy
Vorhees testified about his controlled purchase of drugs from Zierke, as well as prior
purchases. Lance Thomas testified that he purchased methamphetamine from Zierke
several times. Sonia Martinez testified that she sold methamphetamine to Zierke for
him to resell from December 2007 to January 2008. Machelle Sanchez testified that
she supplied Zierke with methamphetamine. Kellie Svoboda testified about selling
Zierke methamphetamine on a daily basis in the months of October and November
of 2007. Zierke III testified that he saw Zierke sell methamphetamine daily in
December 2007 and that he sold it for his father.
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some of which were empty and others contained drug residue. They also recovered
a glass pipe and a torch—used to smoke methamphetamine—among other items.
Based on this evidence and testimony, we find that sufficient evidence exists to
establish beyond a reasonable doubt that Zierke participated in a conspiracy to
distribute methamphetamine.
D. Drug Quantity Determination
Fourth, Zierke contends that the drug quantity used in his sentencing was
overstated. Specifically, he argues that the district court's calculation included the
methamphetamine that he was buying from one government witness and then selling
to another. Zierke urges that to include both weights would be double counting.
Therefore, Zierke argues that district court should have excluded the 140 grams the
government witness bought from him. Zierke submits that once this 140 grams is
subtracted, the total weight is below 500 grams.
"We review the district court's factual finding of drug quantity for clear error
and will reverse a determination of drug quantity only if the entire record definitely
and firmly convinces us that a mistake has been made." United States v. Minnis, 489
F.3d 325, 329 (8th Cir. 2007) (internal quotations and citation omitted).
Zierke's drug quantity arguments are also unavailing. "The Guidelines permit
a district court to approximate the quantity of drugs for sentencing purposes where
. . . there has been no direct seizure of drugs directly establishing the relevant
amount." United States v. Frazier, 280 F.3d 835, 851 (8th Cir. 2002). "Moreover, the
court can determine drug quantity using imprecise evidence, so long as the record
reflects a basis for the court's decision." United States v. Zimmer, 299 F.3d 710, 720
(8th Cir. 2002) (internal quotations and citation omitted). In this case, the district
court determined that there was sufficient evidence to support its finding that "the
bare minimum amount of drugs involved here was 574 grams." (Emphasis added.)
Furthermore, the court added, "I do acknowledge that you have to be careful of
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double counting." Reviewing the record testimony, it is readily evident that adding
the frequency and quantity of drugs that Zierke trafficked shows that his drug
quantity easily exceed the charged 500 grams.4 Zierke has not shown that the district
4
Vorhees testified that the night prior to the controlled purchase Vorhees
received approximately a half gram to three quarters of a gram of methamphetamine
from Zierke on a front. Vorhees also testified that he first began purchasing
methamphetamine from Zierke around December 2007. Vorhees further stated that
he bought "8-balls"—3.5 grams—of methamphetamine from Zierke on two
occasions; one purchase occurred during the controlled buy. Vorhees also testified
that he once bought a "teener"—1.75 grams—from Zierke.
Thomas testified that he began purchasing methamphetamine from Zierke
around Christmas of 2007. Thomas purchased approximately 3.5 grams of
methamphetamine from Zierke on several occasions, but not more than six times.
Martinez testified that she sold 8-balls of methamphetamine to Zierke daily for
one and a half to two weeks beginning in early November 2007. Martinez further
testified that on four or five occasions, she sold Zierke two 8-balls—7 grams—in a
day. Martinez also explained that on six or seven occasions from December 2007 to
January 3, 2008, she sold Zierke half-ounce amounts of methamphetamine. Martinez
also testified that from December 2007 to January 2, 2008, she sold 8-balls to Zierke.
Finally, Martinez said that on seven or eight occasions from December 2007 to
January 3, 2008, Martinez bought half ounces of methamphetamine from Zierke but
that once or twice it was an 8-ball short.
Sanchez testified that she sold methamphetamine to Zierke from approximately
the end of November 2007 until approximately three weeks prior to her arrest on
February 14, 2008. For the first two to three weeks, Sanchez was selling Zierke two
8-balls at varying rates––from more than once per day to once every few days.
Sanchez further testified that starting in December 2008, she sold Zierke half ounces
of methamphetamine at varying frequencies—from daily to every few days. Sanchez
also testified that she sold him one ounce of methamphetamine on a rare occasion.
Sanchez finally stated that she sold Zierke an 8-ball on February 14, 2008.
(continued...)
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court's drug quantity determination was clearly erroneous.
E. Section 3B1.1 Leadership Enhancement
Finally, Zierke contends that while Zierke III's testimony, if believed, may
establish that he supplied his son with methamphetamine, he did not direct, organize,
or supervise his endeavors.
"The district court's factual findings, including its determination of a
defendant's role in the offense, are reviewed for clear error. Its application of the
guidelines to the facts is reviewed de novo." United States v. Vasquez-Rubio, 296
F.3d 726, 729 (8th Cir. 2002) (internal citations omitted).
Again, Zierke's arguments are unpersuasive. Section 3B1.1(b) of the Guidelines
provides that "[i]f the defendant was a manager or supervisor (but not an organizer
or leader) and the criminal activity involved five or more participants or was
otherwise extensive, increase by 3 levels." Comment 2 to that section further provides
that "[t]o qualify for an adjustment under this section, the defendant must have been
the organizer, leader, manager, or supervisor of one or more other participants."
4
(...continued)
Svoboda testified that starting in mid-October to November 27, 2008, she sold
Zierke 8-balls of methamphetamine daily. Svoboda further testified that Zierke would
often return a second time in the same day. Svoboda also testified that she sold Zierke
half-ounce amounts of methamphetamine on two or three occasions. Finally, Svoboda
said that starting in mid-January, she sold Zierke an 8-ball a couple of times and gram
quantities on other occasions.
Zierke III testified that he saw Zierke selling methamphetamine every day after
he began living with his father. Zierke III also stated that at least as early December
2007, he was selling methamphetamine for Zierke every day. Zierke alone supplied
Zierke III with methamphetamine. Zierke III said that he would sell about an 8-ball
or two per day for Zierke. Zierke III and Zierke also used methamphetamine together.
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U.S.S.G. § 3B1.1 cmt. 2. In this case, the record contains substantial evidence
establishing that Zierke directed Zierke III. First, the record reflects that Zierke
exclusively supplied his son with methamphetamine for subsequent sales. Second, the
record indicates that Zierke controlled the proceeds of Zierke III's drug transactions.
Finally, the phone call between Zierke and Zierke III, as well as Zierke III's
testimony, supports a finding that Zierke controlled, directed, and even intimidated
Zierke III in performance of acts in furtherance of their criminal activity.
III. Conclusion
We affirm the judgment of the district court.
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