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United States v. Wetherell

United States District Court, N.D. Iowa, Western Division

February 28, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
SCOTT WETHERELL, Defendant.

          ORDER

          LEONARD T. STRAND, CHIEF UNITED STATES DISTRICT JUDGE

         This matter is before me on defendant Scott Wetherell's motion (Doc. No. 45) for judgment of acquittal or, in the alternative, a new trial. The Government has filed a resistance (Doc. No. 46).

         I. BACKGROUND

         The indictment (Doc. No. 1) charged Wetherell with conspiracy to distribute a controlled substance in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C) and 846. Prior to trial, he requested both a buyer-seller jury instruction and an instruction regarding the lesser-included offense of conspiracy to possess methamphetamine. I reserved ruling on both instructions until the evidence had been submitted. Doc. No. 33 at 2. Trial began on January 4, 2017. At the close of evidence I rejected the buyer-seller instruction:

Eighth Circuit case law on the buyer-seller instruction revolves around whether there is evidence that the defendant intended to obtain drugs for personal use. Back in 1994, Campbell, 35 F.3d 1255, approved a buyer-seller instruction, and it revolved around the issue of whether there was evidence that it was an isolated transaction for personal use. In Romero, 150 F.3d 821, the court talked about the fact that if the quantities are too high to support a suggestion of personal use, then there's no buyer-seller instruction that would be appropriate. And Tillman is a case I've relied on and some other cases. It's from 2014. It's at 765 F.3d 831. The court again discusses the fact that if the transaction was more than a simple isolated transaction with personal use quantities the buyer-seller instruction's not appropriate. The other thing I find interesting about Tillman is that it further discusses the fact that the standard conspiracy instructions that we typically give in conspiracy to distribute cases basically covers the concept of buyer-seller. And here I find instruction 5 telling the jury what a conspiracy is and what it means to be part of a conspiracy, especially element 2 of that instruction along with instruction 4 which Mr. Hansen referenced, which tells the jury what it means to distribute narcotics and basically makes it clear that buying a small amount for personal use is not distribution. I find that even if I'm wrong about whether or not a buyer-seller instruction should be given, I find that the Court's existing instructions adequately cover the concept. So while I don't -- I'm pretty firm on the fact that the evidence here doesn't support any argument that Mr. Wetherell intended to obtain the drugs at issue for his own personal use, even if there was such evidence, I find that the Court's instructions already adequately convey in defining what it means to be part of a conspiracy and what it means to distribute adequately conveys the concepts in any event. So I'm going to reject the request for a separate buyer-seller instruction.

Tr. at 175-76.

         Regarding the lesser-included instruction, I heard argument at the pretrial conference and ruled as follows:

I'm not going to give the lesser included instruction at the beginning of the case. . . First of all, I agree with the government that both in Jangula and also in United States versus Miller which is 939 F.2d 605 the circuit has been pretty clear that there has to be some evidence that if the defendant possessed or conspired to possess the drugs that the purpose was personal use. Given my understanding of what the quantity is which I know Mr. Alexander has said is about a pound and that's my understanding based on my review of the exhibits in advance of today, that's a lot of methamphetamine.

Tr. at 6-7. At the close of evidence I revisited the issue:

I am going to decline to give the lesser included offense instruction. Everybody seems to agree on the general legal framework, and under Jangula which is 735 F.3d 1054, Miller, 939 F.2d 605, it's clear, number one, the Eighth Circuit has characterized it as a rare instance in which conspiracy to possess would be a lesser included of conspiracy to distribute narcotics. And both of those cases and other cases I've looked at on this issue talk about there has to be some evidence that the defendant intended to possess the drugs for personal use. There's no evidence that's been presented in this record that Mr. Wetherell intended to possess the drugs in the Fed Ex package for his own personal use. If anything, the evidence is he wanted Lovan to come pick the package up and get it out of there before Mr. Wetherell returned home. I agree with Mr. Alexander that I think the most telling issue here is the fact that Mr. Wetherell expected to receive $300. While he may not have known exactly what was in the package, the testimony was a gram typically costs a hundred dollars, and if you're going to receive $300 just for letting somebody use your address and you know -- as Mr. Wetherell admitted in his interview with law enforcement, he knew it contained methamphetamine, if he's going to get $300 out of the deal just for allowing the package to be delivered to his address, that's pretty compelling evidence that it's a significant quantity of methamphetamine and not a personal use quantity. I don't think there's any rational reason to believe a drug dealer would take a loss and have 2 grams delivered to Mr. Wetherell's home and pay $300 to Mr. Wetherell just for the opportunity to have a couple of grams delivered. So I think the $300 is very telling here. Mr. Wetherell knew that Mr. Lovan was a drug dealer. He'd purchased methamphetamine from him in the past. He acknowledged in his interview that he knew this package was going to contain methamphetamine, and he expected to be paid $300. There's simply no evidence that Mr. Wetherell intended to possess or intended that the drugs that were arriving at his house were going to be simply personal use narcotics. And instead I think it's clear from the evidence if the jury finds that he was part of a conspiracy it was a conspiracy to distribute, not simply a conspiracy to possess. So I am going to reject the proposed lesser included offense instruction. I will not be instructing the jury on the offense of conspiracy to possess methamphetamine. I think the other instruction that the defense had proposed was a buyer-seller instruction.

Tr. at 170-72.

         Also at the close of evidence, Wetherell requested a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29. I reserved ruling on Wetherell's oral motion, stating:

Because I have so far reserved ruling and if you do plan to file a written motion, I'd certainly like to hear and take your arguments into consideration before I rule on the Rule 29 motion. So I will continue to reserve ruling on that motion. The Rule 29 motion along with any motion for new trial under Federal Rule of Criminal Procedure 33 would have to be filed within 14 days of today's date.

Tr. at 221. On January 5, 2017, the jury returned a verdict (Doc. No. 41) finding Wetherell guilty.

         II. FACTUAL FINDINGS

         Trial was very short and neither party disputes the facts that could have been found by the jury. See Doc. No. 45, 46. The Government called three witnesses: Special Agents Michael Minten and Nathan Ewalt of the Iowa Division of Narcotics Enforcement (DNE) and criminalist Kelsey Rusbarsky of the Iowa Division of Criminal Investigation (DCI). The Government also provided various physical exhibits, such as the methamphetamine shipped to Wetherell's address, the associated packaging, a recorded interview with Wetherell (Gov. Ex. 3) and cell phone logs. Wetherell offered evidence from the cell phone of Lou Lovan, Wetherell's co-conspirator. See Def. Ex. C.

         This evidence showed that Wetherell is a truck driver from Sutherland, Iowa. He was friends with, and occasionally bought personal use methamphetamine from, Lou Lovan. The text message evidence showed that Lovan purchased methamphetamine from a contact (Veing) in California. On one particular trip to California, Lovan purchased a pound of methamphetamine, which the lab analysis confirmed contained over 381.59 grams of methamphetamine actual.

         Lovan made a deal with Wetherell to send the methamphetamine to Wetherell's address in Iowa via FedEx. Lovan hid the methamphetamine in two candles before shipping it. Law enforcement discovered the methamphetamine at the FedEx shipping center in Omaha, Nebraska, and decided to continue the delivery in an attempt to “sting” the recipient. Thus, a law enforcement officer posing as a FedEx driver dropped the package off at Wetherell's residence and the residence was placed under surveillance. Eventually, Lovan arrived at the residence and took possession of the package. Law enforcement officers then intervened and took Lovan into custody.

         Officers continued to wait at the residence. When Wetherell returned home, agents asked if he would answer some questions. Wetherell agreed. During the recorded interview that followed, Wetherell admitted that he knew Lovan was a methamphetamine dealer, that he knew Lovan would be sending methamphetamine to his address and that Lovan had agreed to give him $300 in exchange for allowing the methamphetamine to be delivered to his residence. Wetherell also acknowledged ...


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