United States v. Cox, Seth A.

Court Case Details
Court Case Opinion

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-1910
U

S

A

,

NITED

TATES OF

MERICA

Plaintiff-Appellee,

v.

S

A.

C

,

ETH

OX

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Central District of Illinois.

.

No. 06 CR 40063—Michael M. Mihm, Judge

____________

A

M

14,

2008—D

A

4,

2008

RGUED

AY

ECIDED

UGUST

____________

Before B

,

F

and M

, Circuit Judges.

AUER

LAUM

ANION

B

, Circuit Judge. Seth Cox was convicted of con-

AUER

spiring to manufacture, distribute and possess with intent

to distribute methamphetamine, in violation of 21 U.S.C.

§ 846. The district court sentenced Cox to 300 months’

imprisonment and five years of supervised release. Cox

appeals his conviction and sentence, and for the fol-

lowing reasons, we affirm.

2

No. 07-1910

I. BACKGROUND

From early 2003 through January 2004, Audie Weir

operated a methamphetamine-producing laboratory out

of his home in Bradford, Illinois. To produce methamphet-

amine, Weir needed the appropriate ingredients, and

would rely on various users to bring him ingredients in

exchange for drugs. Cox first met Weir in either late 2002

or early 2003, when he accompanied his cousin to Weir’s

house to trade ingredients for methamphetamine. Over

the ensuing ten months, Cox went to Weir’s house at

least once a week, frequently purchasing drugs or

trading ingredients for drugs from Weir. In addition to

providing ingredients to Weir, Cox helped him install a

four-camera surveillance system in his home. On January 2,

2004, state law enforcement officers raided Weir’s house

and uncovered the lab.

On June 22, 2005, a grand jury returned a single-count

indictment against Cox and three other men under 21

U.S.C. § 846 for conspiring to violate § 841(a), “that is, to

knowingly and intentionally manufacture, distribute,

and possess with intent to distribute” a controlled sub-

stance. Cox’s three co-defendants pleaded guilty; Cox

went to trial. The government’s evidence at trial, detailing

the facts set out above, included the testimony of Weir,

four other co-conspirators, and three law enforcement

officers.

On October 5, 2006, a jury returned a guilty verdict. The

district court sentenced Cox on April 13, 2007 to 300

months’ imprisonment, five years of supervised release, a

$100 special assessment, and joint and several liability

along with his co-defendants with respect to $6,137.56

in restitution. This timely appeal followed.

No. 07-1910

3

II. DISCUSSION

Cox argues that (1) the indictment charging him was

constitutionally defective, requiring vacatur; (2) the dis-

trict court erred by allowing a prejudicial comment before

the jury without striking it or giving a limiting instruc-

tion; and (3) the district court erred in calculating the

quantity of methamphetamine for which Cox was responsi-

ble. We address each issue in turn.

A. Sufficiency of the Indictment
Cox raises two issues in arguing that his convic-

tion should be vacated because of the defects in the indict-

ment. First, he argues that the indictment misstated the

statute under which he was charged, and therefore failed

to give adequate notice of the nature of the charge. Second,

he argues that the indictment failed to state all of the

elements of a drug-related conspiracy, again failing to

give him notice of the charge.

Cox challenges the indictment for the first time on

appeal. “[I]f an indictment has not been challenged at

the trial level, it is immune from attack unless it is so

obviously defective as not to charge the offense by any
reasonable construction.” United States v. Sandoval, 347
F.3d 627, 633 (7th Cir. 2003) (citing United States v. Ander-
son
, 280 F.3d 1121, 1124 (7th Cir. 2002)). “[T]ardily chal-

lenged indictments should be construed liberally in
favor of validity.” United States v. Harvey, 484 F.3d 453,
456 (7th Cir. 2007) (citing United States v. Smith, 230 F.3d

300, 306 n. 3 (7th Cir. 2000)).

Under Rule 7(c)(1) of the Federal Rules of Criminal

Procedure, an indictment must be “a plain, concise, and

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No. 07-1910

definite written statement of the essential facts con-

stituting the offense charged. . . .” Fed. R. Crim. P. 7(c)(1).

We have held that an indictment is constitutionally suf-

ficient and satisfies Rule 7(c)(1) if: (1) the indictment

states all of the elements of the crime charged; (2) it

adequately apprises the defendant of the nature of the

charges so that he may prepare a defense; and (3) it

allows the defendant to plead the judgment as a bar to
any future prosecutions for the same offense. Harvey,
484 F.3d at 456 (citing United States v. Agostino, 132 F.3d

1183, 1189 (7th Cir. 1997)). As a general matter, “[i]ndict-

ments are reviewed on a practical basis and in their
entirety, rather than in a hypertechnical manner.” Id.
(quoting Smith, 230 F.3d at 306 n. 3).

Section 841(a)(1) makes it unlawful for a person know-

ingly or intentionally “(1) to manufacture, distribute, or

dispense, or possess with intent to manufacture, distribute,

or dispense, a controlled substance.” 21 U.S.C. § 841(a)(1)

(emphasis added). The indictment charged Cox with

conspiring to violate § 841(a), “that is, to knowingly and
intentionally manufacture, distribute, and possess with

intent to distribute” a controlled substance.

Cox first argues that the language of § 841(a) makes it a

crime to perform any one of four prohibited acts (to

manufacture, distribute, dispense, or possess with intent

to do any of the other three acts), whereas the indictment

indicates that a person only violates § 841(a) when he

performs each and every one of those acts. Based on

this, Cox posits that he could have reasonably believed

that the governments’ failure to prove any one of these

elements would have justified acquittal. However, the

substitution of the conjunctive “and” for the disjunctive

“or” does not torpedo Cox’s indictment. We have held

No. 07-1910

5

that “where a statute defines two or more ways in which

an offense may be committed, all may be alleged in the
conjunctive in one count.” United States v. Moore, 363
F.3d 631, 640 (7th Cir. 2004) vacated on Booker grounds sub
nom
. Young & Jackson v. United States, 543 U.S. 1100, 125
S.Ct. 1019, 160 L.Ed.2d 1001 (2005) (citing United States
v. LeDonne
, 21 F.3d 1418, 1427 (7th Cir. 1994). Other cir-
cuits have held the same. See United States v. Brown, 504
F.3d 99, 104 (D.C. Cir. 2007); United States v. Montgomery,
262 F.3d 233, 242 (4th Cir. 2001); United States v. McAuliffe,
490 F.3d 526, 534 (6th Cir. 2007); United States v. Roy, 408
F.3d 484, 492 n. 4 (8th Cir. 2005); United States v. Booth, 309
F.3d 566, 572 (9th Cir. 2002); see also 1 Charles A. Wright,
Federal Practice and Procedure § 125 (3d ed. 1999) (“Many

statutes specify a variety of ways a particular crime can

be committed, and if so, the indictment may allege com-

mission of the offense by all the acts mentioned if it uses

the conjunctive ‘and’ where the statute uses the disjunctive
‘or.’ ”); 9 Federal Procedure, Lawyers Edition § 22:863 (2008).

Cox attempts to skirt the rule by arguing that Cox

was indicted for a conspiracy under § 846, and not for a

substantive violation of § 841, and that the rule does not

apply in conspiracy situations. This is a distinction with-

out a difference. The purpose of the rule allowing con-

junctive wording in an indictment that charges an

offense under a statute worded in the disjunctive is to

“adequately apprise the defendant of the government’s

intention to charge him under [any] prong of the stat-
ute.” LeDonne, 21 F.3d at 1427. An indictment that did not

follow this rule and alleged several acts in the disjunctive

would fail to give the defendant notice of the acts he is
charged with committing. See generally 1 Charles A. Wright,
Federal Practice and Procedure § 125 (3d ed. 1999) (citing

6

No. 07-1910

United States v. Donovan, 339 F.2d 404, 407-08 (7th
Cir. 1964) cert. denied 85 S.Ct. 1338, 380 U.S. 975, 14

L.Ed.2d 271)). The same principle applies here. Had the

indictment not included the “and,” Cox would not have

been adequately apprised of the fact that the government

was charging him with conspiring to commit any one of the

specific acts listed in the indictment. The fact that he was

charged under the conspiracy statute does not change the

government’s duty to inform Cox of all the potential

illegal acts he is alleged to have committed.

In any event, we cannot say on a practical basis that the

indictment was obviously defective for including the

conjunctive, and the lack of prejudice is indicated by the

fact that Cox did not think to make this argument to the

district court.

Cox briefly mentions that the district court may have

constructively amended the indictment through the jury

instructions, which replaced the “or” found in § 841(a)(1)

and stated that “[t]he government need not prove that

the defendant conspired to commit all three offenses.” He

does not develop this argument; at any rate, we have

addressed this argument before in this context, and
rejected it. See United States v. Jones, 418 F.3d 726, 729-30
(7th Cir. 2005) (finding that the substitution of “or” in jury

instructions for “and” in indictment did not broaden

charge so as to constructively amend the indictment);
United States v. Muelbl, 739 F.2d 1175, 1179-81 (7th Cir.

1984).

Cox next argues that the indictment fails to set forth

the elements of conspiracy under 21 U.S.C. § 846. The

indictment alleges that from March 2003 to July 2005 in

Henry County, Illinois, Cox and others “did conspire” to

commit an offense under § 841(a). He argues that this was

No. 07-1910

7

not enough to state all of the elements of the crime

charged, as it did not offer a legal definition of the term

“conspire” or “conspiracy.” We have held that an indict-

ment under § 846 is sufficient if it alleges a conspiracy to

distribute drugs, the time during which the conspiracy
was operative, and the statute allegedly violated. United
States v. Spears
, 965 F.2d 262, 279 (7th Cir. 1992) (citing
United States v. Sweeney, 688 F.2d 1131, 1140 (7th Cir. 1982));
United States v. Dempsey, 806 F.2d 766, 769 (7th Cir. 1986);
United States v. Roman
, 728 F.2d 846, 852 (7th Cir. 1984).

Construing the indictment in this case “liberally in favor

of validity,” the indictment easily satisfied these require-

ments.

We find nothing in the indictment “so obviously defec-

tive as not to charge the offense by any reasonable con-

struction.”

B. Comments During Trial
During the trial, two government witnesses described

the method used to cook methamphetamine in clan-

destine labs such as Audie Weir’s as the “Nazi method.”

1

1

Why the “Nazi method”? Our sister circuit explained: “The

‘Nazi method’ makes use of readily available ingredients and
yields a very pure product. The technique takes its name from
the method perfected and used by German soldiers during
World War II to produce methamphetamine so they could
stay alert while in the field.” United States v. Lynch, 322 F.3d
1016, 1018 n.2 (8th Cir. 2003); see also United States v. Ward,
182 Fed.App’x 779, 792 n.5 (10th Cir. 2006) (unpublished
opinion) (“The ‘Nazi method’ of manufacturing methamphet-

(continued...)

8

No. 07-1910

Cox argues that the district court plainly erred by failing

to strike the “Nazi” comments as irrelevant or unduly
prejudicial, and by failing to sua sponte clarify that Cox

was not affiliated with the Nazis in any way. Cox did

not object to the comments, so we review for plain error.
United States v. Price, 418 F.3d 771, 779 (7th Cir. 2005).

Under this standard, we may reverse only if the error

complained of meant that Cox “probably would not
have been convicted but for the [error].” United States v.
Curtis
, 280 F.3d 798, 801 (7th Cir. 2002).

We recognize the powerful emotions associated with

the very mention of the word “Nazi” in a courtroom, and

that the description by the government witnesses of the

method used by Weir had almost no probative value. The

difficulty with Cox’s argument is that he failed to give

the district court opportunity to balance the probative

value of the evidence against any unfair prejudice, and

it was incumbent upon him to do so. To require the dis-

trict court, without prompting, to comment on facts as

they unfold in the course of the proceedings would place

the court in the role of an advocate. The district court
did not err in failing to sua sponte strike the comment

from the record or to instruct the jury that Cox was not

affiliated in any way with the Nazis or neo-Nazis. Of

course, even if it did err in that regard, Cox has not met

his burden in demonstrating that he probably would not

have been convicted but for the “Nazi method” comment.

The evidence presented at Cox’s trial was more than

1

(...continued)

amine obtained its name because the process originated in
Germany and was utilized in World War II by their troops.”).

No. 07-1910

9

sufficient to establish that Cox was a participant in the

methamphetamine conspiracy. No plain error exists by

the admission of the statements of the government wit-

nesses.

C. Drug Quantity
Cox finally argues that the district court erred in cal-

culating the quantity of methamphetamine for which Cox

was responsible. He contends that the primary evidence

relied upon by the court in making its calculation—the

testimony of Weir—lacked sufficient reliability.

We review a district court’s calculation of drug quantity

for sentencing purposes for clear error. United States v.
Soto-Piedra
, 525 F.3d 527, 529 (7th Cir. 2008). The govern-

ment must prove drug quantity by a preponderance of
the evidence. Id. (citing United States v. McGowan, 478

F.3d 800, 802 (7th Cir. 2007)). We require that the evid-

ence relied upon by the district court at sentencing
bear “sufficient indicia of reliability.” United States v.
Wilson
, 502 F.3d 718, 721-22 (7th Cir. 2007).

Evidence of drug quantity must be based on more than

just “nebulous eyeballing,” but the Sentencing Guide-

lines permit some amount of reasoned “speculation and
reasonable estimation” by the sentencing court. United
States v. Hollins,
498 F.3d 622, 631 (7th Cir. 2007) (quoting
United States v. Jarrett, 133 F.3d 519, 530 (7th Cir. 1998); see

U.S.S.G. § 2D1.1, Application Note 12 (“Where there is

no drug seizure or the amount seized does not reflect the

scale of the offense, the court shall approximate the quan-

tity of the controlled substance. In making this determina-

tion, the court may consider, for example, . . .

similar transactions in controlled substances by the de-

10

No. 07-1910

fendant. . . .”). In this case, the district court calculated the

drug quantity attributable to Cox by multiplying the

average weight of methamphetamine cooked by

Weir during each batch by the number of times that he

cooked methamphetamine during the time that Cox

participated in the conspiracy. We have previously up-
held similar methods of calculation. See, e.g., United States
v. White
, 360 F.3d 718, 720 (7th Cir. 2004); United States
v. Beler
, 20 F.3d 1428, 1434 (7th Cir. 1994).

Weir testified that in each production, he “always”

cooked at least fifty grams of methamphetamine. He

further testified that he “sometimes” cooked seventy-five

grams, and “occasionally” more than 150 grams. The

PSR estimated that the average weight per production

was 110 grams. Cox objected to this estimate, and sug-

gested that the amount should be “average[d] down” to

between fifty and a hundred grams. The district court

agreed to Cox’s proposal, and adopted an average of

seventy-five grams per production.

As to the frequency of production, Weir’s testimony

was less clear. He testified at one point that he cooked

methamphetamine at least two times a month; at another

point, he claimed he cooked “[o]nce a week most of the

time.” The district court reviewed the trial transcript and

found that Cox was involved in the drug conspiracy for

ten months, and Cox agreed to that time frame. Based on

these two facts, the district court conservatively esti-

mated that, during time that Cox was involved with the

conspiracy, Weir cooked methamphetamine at least

No. 07-1910

11

2

twenty-four times.

This calculation was thoroughly

explained by the district court, and we find no error in

the method or explanation.

Cox argues that the district court should not have

relied on Weir’s testimony because he was an admitted

methamphetamine user and gave inconsistent testimony

regarding events two years prior to the sentencing hearing,

a period during which Weir admittedly used drugs.

Determinations of witness credibility are entitled to

great deference and “can virtually never be clear error.”
United States v. Blalock, 321 F.3d 686, 690 (7th Cir. 2003).

While heavy drug use is a factor that the court can use

in making its determination, it is not outcome-determina-
tive. See United States v. Crockett, 82 F.3d 722, 727 (7th Cir.

1996). The district court scrutinized Weir’s testimony

precisely because of the concerns raised by Cox, and noted

that “I did not get the sense during the course of his

testimony that he was fabricating or exaggerating.” That

judgment is afforded substantial deference.

The testimony of Weir, judged by the district court to

be credible, bore sufficient indicia of reliability, and

therefore we find no clear error in the court’s drug

quantity calculation.

2

As the government correctly notes, even if the district court

strictly used the “two times a month” production rate, two
productions per month over ten months at seventy-five
grams per production equals a total of 1,500 grams of metham-
phetamine, which is the minimum amount needed to place
Cox’s offense at Level 34, the level at which he was sentenced.

12

No. 07-1910

III. CONCLUSION

Accordingly, we A

Cox’s conviction and sentence.

FFIRM

USCA-02-C-0072—8-4-08

Referenced Cases

  1. United States v. Brown
  2. United States v. Michael David Booth v. Louis Robert Bories v. Michael David Booth
  3. United States v. David Lynch
  4. United States v. Michael P. Roy
  5. United States v. Terraun Price
  6. United States v. Gene E. Beler
  7. United States v. Hollins
  8. United States v. William L. Curtis
  9. United States v. Hector Sandoval
  10. United States v. Kevin Sweeney v. Daniel M. Hughes
  11. United States v. Joseph Muelbl
  12. United States v. Alfred McGowan
  13. United States v. David Daniel Anderson
  14. United States v. David Roman
  15. United States v. Terrance E. Blalock
  16. United States v. Craig A. Smith
  17. United States v. Larry Harvey
  18. United States v. Wilson
  19. United States v. James P. Ledonne
  20. United States v. Joseph F. Agostino
  21. United States v. Derrick Jarrett
  22. United States v. Bradley G. White
  23. United States v. Soto-Piedra
  24. United States v. Andre Jones
  25. United States v. Michael U. Dempsey
  26. United States v. Charles J. Spears v. Kim Curran
  27. United States v. Phillip Crockett
  28. United States v. M.L. Moore
  29. United States v. Don S. McAuliffe
  30. United States v. Donnie Montgomery v. Duane Carroll v. James Deberry