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United States v. Delacruz

United States Court of Appeals, Eighth Circuit

July 31, 2017

United States of America Plaintiff- Appellee
Jose Luis Delacruz Defendant-Appellant

          Submitted: March 10, 2017

         Appeal from United States District Court for the District of North Dakota - Fargo

          Before LOKEN, MURPHY, and BENTON, Circuit Judges.

          LOKEN, Circuit Judge.

         An October 2014 superseding indictment charged Jose Luis Delacruz with conspiracy to possess with intent to distribute and distribute over 500 grams of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count One), and use of a firearm during a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A) (Count Two). After a three-day trial, a jury convicted Delacruz of both offenses. The district court[1] denied post-trial motions for judgment of acquittal and a new trial and sentenced Delacruz to the mandatory minimum sentence of life in prison on Count One and a consecutive seven years on Count Two. Delacruz appeals, arguing the district court erred in denying a judgment of acquittal because evidence at trial showed multiple conspiracies rather than the single conspiracy charged in the indictment; abused its discretion in denying the motion for a new trial because the court failed to give a specific unanimity instruction on Count Two and the weight of the evidence did not support the jury's verdict; and abused its discretion in denying his pretrial motions for substitute counsel. We affirm.

         I. Background.

         Count One charged that from January 2013 until October 2014 Delacruz, Patrick Peltier, Anthony Farrell, Kimberly Ratliff, and Brian McMahan conspired to distribute in excess of 500 grams of methamphetamine in North Dakota, Minnesota, and elsewhere, committing overt acts of concealment, use of telecommunication facilities and United States currency, and violence to further their drug trafficking activities. Count Two charged that Delacruz and Peltier used a firearm during a drug trafficking crime "on or about March 21, 2014." We summarize the evidence at trial viewed in the light most favorable to the jury's verdict. See United States v. Buckley, 525 F.3d 629, 632 (8th Cir.), cert. denied, 555 U.S. 977 (2008).

         Conspirator Anthony Farrell testified that he started dealing methamphetamine for Delacruz in 2013, typically buying a quarter-gram to an eight-ball (3.5 grams) each week. Delacruz fronted the sales, meaning Farrell bought the methamphetamine on credit and repaid Delacruz after resales to others. At the end of the summer, Delacruz introduced Farrell to his source, Robles. Farrell purchased directly from Robles until Delacruz returned to selling drugs one month later. Farrell then purchased from both Robles and Delacruz. In early 2014, Farrell fell behind in his payments to Robles. Robles showed Farrell a video of a beheading based on failure to pay a drug debt, and Delacruz hounded Farrell about paying. At one point, Delacruz and Robles took Farrell for a "tense" drive in the country, and Delacruz told Farrell he needed to pay his debt. This scared Farrell, who then paid his debt to Robles through Delacruz.

         Conspirator Kimberly Ratliff testified that she dealt methamphetamine for Delacruz directly and through Farrell. Delacruz told Ratliff to get the title to Farrell's car to satisfy his drug debts. When she failed to do this quickly, Delacruz and Peltier threatened Ratliff's father and children at their home. On another occasion, Delacruz made Ratliff strip naked and pointed a gun at her. And on yet another occasion, after Ratliff failed to pay Delacruz on time, Delacruz took her for a ride in the country where he threatened her with a gun and said he was going to kill her baby.

         Conspirator Brian McMahan testified that he began using methamphetamine with Delacruz during the summer of 2013. He drove Delacruz in exchange for drugs and witnessed Delacruz sell methamphetamine "a couple dozen" times. At one point, McMahan drove Ratliff to the country, where Delacruz yelled at her and pretended to have a gun. On March 21, 2014, McMahan accompanied Delacruz to the apartment of Pat Peltier, who served as Delacruz's "muscle, " because Delacruz had to "deal with a guy." Inside the residence, Delacruz argued with Shawn Ellingson, whom McMahan had never met. Delacruz brandished his gun, used it to hit Ellingson in the nose, and put it down Ellingson's throat.

         Ellingson testified that he was friends with Peltier and had witnessed Delacruz handle dealer-level amounts of methamphetamine in Peltier's apartment. On March 21, 2014, Delacruz told Ellingson to go to Peltier's apartment where Delacruz called Ellingson a snitch, made him strip, punched him, and shoved a gun down his throat.

         Delacruz yelled, "I fucking hate you, " and "I'm going to kill you." Delacruz and Peltier dragged Ellingson to his car, drove him to a remote area, and forced him out into the cold winter night, taking Ellingson's car keys. Two young girls picked up Ellingson and brought him home. Police found his abandoned car and went to his apartment. Ellingson first told police about the assault, and later told them about the methamphetamine distribution. Detective Daniel Cassetta testified that a warrant search of Peltier's apartment uncovered baggies for distributing illegal narcotics. He alerted federal authorities, who opened a drug distribution investigation.

         Other cooperating witnesses testified to the extent of the conspiracy and Delacruz's role. Jessica Kirchoffner testified that Farrell was her methamphetamine dealer; in 2013, she helped him deliver roughly ten thousand dollars to Delacruz. Heather Schake dealt small amounts of drugs for Delacruz and witnessed some of his drug transactions. Delacruz once asked Schake if she would kill Ratliff because he was paranoid about her being a snitch. Brian Noyes bought drugs from Delacruz and witnessed transactions involving large sums.

         II. The ...

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