U.S. 8th Circuit Court of Appeals UNITED STATES v JAMES KEITH LOVELESS
United States Court of Appeals for the eighth circuit
United States of America, ** Appellee, * Appeal from the United * States District Court for v. * the District of Nebraska. * James Kenneth Loveless, * *
Submitted: January 13, 1998
Filed: March 12, 1998
Before LOKEN and MURPHY, Circuit Judges, and KYLE, District Judge.1
KYLE, District Judge.
A jury convicted James Loveless ("Loveless") of conspiring to distribute methamphetamine, in violation of 21 U.S.C. § 846. The district court sentenced him to 360 months.2 Loveless challenges both his conviction and his sentence. We affirm.
This case involves a conspiracy to sell large quantities of methamphetamine between September 1991 and April 1993 in Nebraska. Viewed in a light most favorable to the jury's verdict, see United States v. Cunningham, 83 F.3d 218, 222 (8th Cir. 1996), the evidence reveals the following facts.
In late 1990, Loveless worked for Kevin Reber ("Reber") at a truck stop in Fontana, California. Loveless approached Reber and told him that if he knew anyone who needed methamphetamine, Loveless could supply it. Although Reber initially refused this invitation, he and another person contacted Loveless in mid-1991 in order to obtain drugs for resale. Reber received one pound of methamphetamine and one pound of cocaine from Loveless, for which he paid $15,000 per pound. Reber then sold the drugs in the Grand Island, Nebraska area.
Thereafter, Reber obtained between one to three pounds of methamphetamine from Loveless every four to six weeks. Reber bought methamphetamine from Loveless in either California or Las Vegas, Nevada, and he resold it in Salt Lake City, Utah, Denver, Colorado, and Grand Island. When the drug sales occurred in Las Vegas, Reber usually met Reber at Ceasar's Palace or another casino. In total, Reber obtained 29 1/2 pounds of methamphetamine and one pound of cocaine from Loveless.
From mid-1991 through 1992, Reber lived at Gary Fagan's ("Fagan") home near Grand Island. Reber used Fagan's truck to transport the methamphetamine that he bought from Loveless to Nebraska. In November 1991, at Reber's request, Fagan went
to Salt Lake City to pick up methamphetamine from "Jimmy." Although Fagan could not identify Loveless at trial, FBI Special Agent Dave Burlew testified that Fagan had previously identified Loveless as "Jimmy," the person who had sold him drugs in Salt Lake City in 1991.
In September 1991, Reber provided methamphetamine to Shari Trompke for resale in the Grand Island area. Between September 1991 and July 1992, Reber gave Shari Trompke between 12 to 15 pounds of methamphetamine.
Shari Trompke accompanied Reber on some of his trips to buy methamphetamine from Loveless. In November 1991, Shari Trompke and Reber went to Bakersfield, California to buy methamphetamine from Loveless. In April 1992, they drove to Las Vegas, where Loveless sold Reber a pound of methamphetamine at Caesar's Palace. In June 1992, Reber and Shari Trompke went to Las Vegas again to buy methamphetamine from Loveless. On this trip, Loveless asked Shari Trompke if she could sell more methamphetamine.
After Shari Trompke began selling methamphetamine, she asked her brother Allen Trompke to sell drugs that she would supply to him. Beginning in the fall of 1991, Allen Trompke sold methamphetamine that Shari Trompke had given him. Shari Trompke told her brother that she received her drugs from Reber. After Shari Trompke went to prison in July 1992, Reber asked Allen Trompke if he wanted to continue selling methamphetamine. Reber then provided Allen Trompke with two pounds of methamphetamine every month or two during the end of 1992 and the beginning of 1993. Reber had also given Allen Trompke an additional two pounds of
methamphetamine while the two were in Denver in January 1992.
As part of its case in chief, the government called Darold Hinsch ("Hinsch") to testify about his drug dealings with Loveless. The district court overruled objections to Hinsch's testimony as improper character evidence under Federal Rule of Evidence 404(b) and as unduly prejudicial under Rule 403. The district court found that Hinsch's testimony was admissible, under Rule 404(b), to show proof of opportunity, intent, preparation, knowledge, identity, and absence of mistake or accident. It also found that there was not a great likelihood of unfair prejudice because of the close identity of the modus operandi. The district court gave a limiting instruction to the jury before Hinsch testified and in the Court's final instructions, advising the jury that it could not consider Hinsch's testimony as evidence of Loveless' character or his propensity to commit illegal acts.
Hinsch testified that in late 1991, Loveless asked him if he wanted to get "started up again" selling methamphetamine. Hinsch agreed, and from late 1991 through 1993, Hinsch distributed methamphetamine in the Salt Lake City area that Loveless had supplied to him. After buying ounce quantities of the drug several times, he began to purchase pound quantities of methamphetamine in 1992. Hinsch bought between one and three pounds of methamphetamine from Loveless every month or two. These transactions occurred in Las Vegas at "the Strip."
After the jury convicted Loveless of conspiring to distribute methamphetamine, the district court held an evidentiary hearing on unresolved sentencing issues. At this hearing, the government presented evidence regarding the type of methamphetamine
involved in the conspiracy.
A forensic chemist testified that the d-isomer found in d- methamphetamine was a much stronger stimulant than that found in l-methamphetamine.
D-methamphetamine gives its users feelings of strength, keeps them awake for days, causes loss of appetite, and produces a very stimulating affect followed by severe depression when the effects begin to wear off. L-methamphetamine does not produce these types of stimulating effects.
Several individuals testified about the effects of the methamphetamine they used which Loveless had supplied. At trial, Reber testified that Loveless had sold him all of the methamphetamine that he, in turn, sold to Shari and Allen Trompke between 1991 and 1993. Chris Rasco testified that when she used methamphetamine that Shari Trompke had sold her, she hallucinated, her body did not function properly, she could not have conversations with people, she had problems concentrating, and she stayed awake for days at a time. Allen Trompke testified that when he used methamphetamine that Shari Trompke or Reber had supplied to him, he experienced a severe loss of appetite. Glen Schomer testified that when he used methamphetamine that Allen Trompke had sold him, he had no desire to eat or sleep, felt paranoid, and stayed awake for "weeks at a time." Shari Trompke testified that when she used the methamphetamine that Reber had provided her, she stayed awake for long stretches and had no appetite. Allen and Shari Trompke and Schomer also testified that their customers did not complain about the methamphetamine they sold them.
The forensic chemist also testified that he had tested two exhibits that the
Nebraska State Patrol had sent him, and that the exhibits contained the d-isomer of methamphetamine. The government presented evidence that these exhibits were part of the methamphetamine that Reber had bought from Loveless. The exhibits came from a sale that Allen Trompke had arranged to make to Tim Green, a confidential informant with the Nebraska State Patrol, in March 1993.