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United States v. Muelbl

July 2, 1984

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JOSEPH MUELBL, DEFENDANT-APPELLANT



Appeal from the United States District Court for the Eastern District of Wisconsin. No. 83-CR-39 -- Myron L. Gordon, Judge.

Wood, Coffey, and Henley,*fn* Circuit Judges.

Author: Coffey

Coffey, Circuit Judge.

The defendant-appellant, Joseph Muelbl, was convicted in the United States District Court for the Eastern District of Wisconsin of conspiracy to distribute marijuana, cocaine and methaqualone in violation of 21 U.S.C. ยงยง 841(a)(1) and 846. On appeal he raises two issues: (1) whether the district court erred in instructing the jury that it could convict the defendant if they found that he was a member of a conspiracy to distribute any one of the three controlled substances when the indictment charged the conspiracy to distribute those substances in the conjunctive; and (2) whether the district court violated Muelbl's Sixth Amendment right to confront his accusers in limiting his counsel's cross-examination of two witnesses. We affirm.

I

The evidence in the record demonstrates that Joseph Muelbl engaged in drug transactions with several individuals who subsequently testified against him at trial. For example, Brian Stehling testified, under a grant of immunity, that he was introduced to the defendant, Muelbl, in the spring of 1979, and subsequent to that meeting, Muelbl began providing him with quantities of marijuana, cocaine and qualudes on a "front" (consignment) basis. Stehling would in turn sell these drugs to other individuals (including Michael Taylor and James Nigbor who also testified against Muelbl).

In addition to receving drugs from Muelbl for further distribution, Stehling testified about several other drug transactions he had conducted with the defendant Muelbl. For example, on one occasion Stehling contacted Muelbl regarding a large quantity of marijuana he had for sale. Muelbl agreed to purchase the marijuana and Stehling thereafter delivered it to Muelbl's Tower Road house in Stoughton, Wisconsin.

As previously noted, at the beginning of the alleged conspiracy, Muelbl provided Stehling with drugs which Stehling in turn sold to other individuals, including Michael Taylor and James Nigbor. As the conspiracy developed, Muelbl began having direct contact with both Taylor and Nigbor.For example, Taylor testified that subsequent to his arrest in 1980 he purchased cocaine from Muelbl on three or four occasions.With regard to James Nigbor, the evidence demonstrated that during the summer of 1980, Muelbl met Nigbor at Nigbor's Milwaukee, Wisconsin apartment. Following this meeting, Muelbl informed Nigbor that marijuana, qualudes and currency had been stolen from his Tower Road home. At Muelbl's request Nigbor moved into the Tower Road house in December of 1980. Nigbor's testimony indicates at the time Muelbl was living in various other houses in Wisconsin.

According to Nigbor, Muelbl provided him with various packages of marijuana and cocaine with Nigbor was instructed to deliver to certain customers who came to the Tower Road house, in exchange for cash. In addition, Nigbor was directed to maintain a record of the drug transactions. Furthermore, in accordance with Muelbl's instructions, some of the money from those transactions was retained in a safe located at the Tower Road home.

In the early morning hours of February 18, 1981, law enforcement officers conducted a search of the Tower Road home pursuant to a warrant. During that search, the officers found approximately 420 pounds of marijuana, 19 grams of cocaine, the aforementioned drug ledger, and $81,320 of currency in the safe.

The jury found Muelbl guilty of conspiracy to distribute, dispense or possess with the intent to distribute marijuana, cocaine, or methaqualone on June 15, 1983. Muelbl was subsequently sentenced to 4 1/2 years of imprisonment.From that conviction the defendant appeals.

II

A. THE PROPRIETY OF THE COURT'S JURY INSTRUCTIONS.

The defendant contends that the trial court improperly instructed the jury with regard to the scope of the conspiracy the government was required to prove to obtain a conviction under the grand jury's indictment.*fn1 The indictment provided, in pertinent part:

"1. Beginning in or about 1979 and continuing through in or about February, 1981, in Milwaukee, in the state and Eastern District of Wisconsin, and in diverse other places throughout the Eastern District of Wisconsin; and in Stoughton, Wisconsin; Fort Lauderdale, Florida; and in diverse other places known and unknown to this grand jury,

JOSEPH MUELBL

and other co-conspriators unnamed in this indictment or unknown to this grand jury, did unlawfully, willfully, and knowingly combine, conspire, confederate, and agree together to commit acts in violation of the laws of the United States, that is, to intentionally, knowingly, and unlawfully distribute, dispense, and possess with the intent to distribute, and to knowingly aid and abet the distribution, dispensation, and possession with intent to distribute, quantities of marihuana, a Schedule I non-narcotic controlled substance; cocaine, a Schedule II narcotic controlled substance; and methaqualone, a Schedule II non-narcotic controlled substance; in violation of Title 21, United States Code, Section 841(a)(1) and Title 18, United States Code, Section 2."

While the objects of the conspiracy (marijuana, cocaine, and methaqualone) are alleged in the indictment in the conjunctive, the district court instructed the jury that they could convict the defendant if they found a conspiracy to distribute or possess with the intent to distribute any one of these drugs. Specifically, the trial court instructed the jury:

"The indictment charges a conspiracy to distribute, to dispense, and to possess with the intent to distribute three controlled substances; marijuana, cocaine and methaqualone, ...


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