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United States v. Miner

October 14, 1997

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,

v.

TINA M. MINER, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Western District of Wisconsin. No. 96 CR 62 S -- John C. Shabaz, Judge.

Before BAUER, RIPPLE, and EVANS, Circuit Judges.

BAUER, Circuit Judge.

ARGUED SEPTEMBER 19, 1997

DECIDED OCTOBER 14, 1997

This appeal arises from defendant Tina M. Miner's conviction for perjury. Miner pled guilty to perjury under 18 U.S.C. sec. 1623(a) after being indicted for submitting false testimony to a grand jury regarding a cocaine distribution ring with which she was associated. Miner was sentenced to 24 months in prison and a three year term of supervised release. Miner now appeals her sentence, arguing that (1) the district court should have applied the clear and convincing standard of proof in assessing the facts below; (2) the government failed to meet its burden of proof in establishing the amount of cocaine for which she was responsible; and (3) she was prejudiced by a pre-indictment delay. For the reasons set forth below, we affirm the sentence of the district court.

Background

Tina Miner's conviction for perjury under 18 U.S.C. sec. 1623(a) arose from her involvement in a drug trafficking conspiracy in Douglas County, Wisconsin during the time period between late 1989 and April 1991. Ms. Miner acted as a fourth-tier cocaine dealer to a drug conspiracy supplied by a man named Derek Crenshaw from San Francisco. Mr. Crenshaw sent, via United Parcel Service, at least 14 packages of a half or full kilogram of cocaine to William Patrick in Superior, Wisconsin. William Patrick and one of his distributors, John Marro, would "cut" the cocaine by adding Inositol, and then weigh the cocaine and divide it into one ounce quantities for distribution. The addition of Inositol, a non-drug substance with the same texture and color as cocaine, increased the weight and thus the profit margin of the cocaine.

Marro purchased five or six ounces from each shipment Crenshaw sent to Patrick. Marro would "cut" in additional Inositol to the cocaine and repackage the cocaine into "eight-balls," or one-eighth of an ounce measurements. *fn1 Tina Miner, Marro's sister-in-law, was Marro's biggest purchaser. Miner purchased four eight-balls of cocaine out of every ounce of cocaine Marro purchased from Patrick, or one half of the cocaine Marro sold. Miner also occasionally purchased cocaine from other third-tier dealers of the conspiracy. She sold the cocaine out of her apartment and at local Superior, Wisconsin area bars.

The cocaine distribution ring became the subject of a law enforcement investigation, and on October 23, 1991, Tina Miner (then Tina Lyons) appeared before a federal grand jury in Madison, Wisconsin. Miner was granted immunity in exchange for her testimony. During her testimony, Miner freely admitted distributing cocaine and purchasing it from William Patrick. However, Miner denied any involvement with John Marro. Specifically, Miner testified to the following:

Q: Did you ever get cocaine from Mr. Marro?

A: No.

Q: Does Mr. Marro use drugs?

A: I don't know.

Q: But you're certain that you never got ...


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