                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-28-2002

USA v. Fritz
Precedential or Non-Precedential:

Docket 0-4120




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Recommended Citation
"USA v. Fritz" (2002). 2002 Decisions. Paper 46.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/46


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                                                 NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                    FOR THE THIRD CIRCUIT


                          No. 00-4120


                    UNITED STATES OF AMERICA

                               v.

                        ROBERT L. FRITZ,

                                           Appellant


          Appeal from the United States District Court
            for the Middle District of Pennsylvania
             (D.C. Criminal Action No. 99-cr-00042)
             District Judge: Honorable Malcolm Muir



                    Argued November 26, 2001

         Before: ROTH, FUENTES and WEIS, Circuit Judges

          (Memorandum Opinion filed: January 28, 2002)


Stephen F. Becker, Esquire (Argued)
Shapiro & Becker
114 Market Street
Lewisburg, PA    17837

     Attorney for Appellant


David M. Barasch
   United States Attorney
   Middle District of Pennsylvania
John J. McCann, (Argued)
   Assistant United States Attorney
Herman T. Schneebeli Federal Building
240 West Third Street, Suite 316
Williamsport, PA   17701- 6465

     Attorneys for Appellee


                       MEMORANDUM OPINION
ROTH, Circuit Judge:

     Defendant Robert L. Fritz appeals from a judgment of sentence in the
United
States District Court for the Middle District of Pennsylvania. After
entering a plea of not
guilty on three criminal counts, Fritz was found guilty of two counts,
including
conspiracy to distribute and possess with intent to distribute heroin,
cocaine, or cocaine
base (crack), see 21 U.S.C.    846, and distribution of cocaine base
(crack) resulting in the
death of an individual. See 21 U.S.C.     841 (a)(1). Fritz was found not
guilty of a third
count of distribution of heroin resulting in the death of an individual.
See 21 U.S.C.
841 (a)(1). On November 14, 2000, Fritz was sentenced to thirty years
imprisonment and
supervised release of ten years.
     On appeal, Fritz first contends that his conviction should be
reversed because of
prejudice suffered due to the District Court's joinder and subsequent
refusal to sever the
conspiracy count and the two distribution counts. See Fed. R. Crim. P.
8(a) & 14. We
agree with the District Court's rejection of these contentions. The
evidence admissible
for the conspiracy count was also admissible for the distribution counts.
In circumstances
such as these, where three offenses share the same "transactional nexus,"
the indictment
counts are properly joined. United States v. Eufrasio, 935 F. 2d 553, 570
n.20 (3d. Cir.),
cert. denied, 502 U.S. 925 (1991). We find that the District Court did not
abuse its
discretion in its decision not to sever the charges of the indictment. The
evidence was
admissible against Fritz in the conspiracy count and the two distribution
counts, and there
is not substantial evidence to warrant a finding of prejudice.
             Fritz also alleges that the conviction on the conspiracy to
distribute charge should
be reversed. Fritz claims a variance between the indictment of a single
conspiracy and
the proof offered at trial, which, according to Fritz, was indicative of
multiple
conspiracies. Fritz also claims that the District Court erred in denying
his motion for
judgment of acquittal based on insufficiency of the evidence, and that the
jury's verdict
on this count was against the weight of evidence. These allegations fail.
Although
evidence in support of a single conspiracy, as opposed to multiple
conspiracies, is not
overwhelming, our review of the record in a light most favorable to the
government does
reveal sufficient evidence for a reasonable jury to find the existence of
a single
conspiracy. The District Court properly deferred to the jury's verdict in
denying the
motion for judgment of acquittal. Furthermore, the jury's verdict was not
against the
weight of the evidence.
     Fritz makes similar variance and evidentiary arguments with respect
to the charge
of distribution of cocaine base (crack) resulting in the death of an
individual and,
additionally, alleges an impermissible broadening of the indictment
through the District
Court's jury charge. For the same reasons that Fritz's arguments fail
with respect to the
conspiracy charge, they also fail with respect to the distribution charge.
There was
sufficient evidence for a jury to properly find Fritz guilty of the
distribution charge, the
verdict was not against the weight of the evidence, and the District
Court's jury charge
was consistent with the indictment.
     Fritz next contends that the District Court improperly denied his
request to instruct
the jury that evidence of multiple buyer-seller relationships, standing
alone, is insufficient
to support a conspiracy conviction. Fritz also claims that the trial
court erred in refusing
to give the requested jury instruction since the buyer-seller instruction
was a part of his
defense. After reviewing the jury charge, we find Fritz's claims without
merit. There
was sufficient evidence to establish that Fritz's acts involved multiple
drug transactions as
opposed to single isolated sales associated with a buyer-seller
relationship. We agree
with the District Court that the evidence did not support a buyer-seller
charge to the jury.
         Finally, Fritz makes several arguments regarding his sentence.
First Fritz contends
that the District Court erred in calculating the amount of crack cocaine
attributable to
Fritz. Second, Fritz claims that the court erred in applying a three-
level upward
sentencing adjustment pursuant to U.S.S.G.    3B1.1(b) for acting in a
supervisory
capacity. Third, Fritz claims that the District Court's two level upward
sentencing
adjustment pursuant to U.S.S.G.    3B1.4 for using a minor in the
commission of a crime
was improper. Fritz's fourth claim is that the District Court should not
have increased his
maximum sentence from twenty to thirty years due to a prior conviction,
when that
conviction was not proven beyond a reasonable doubt to the jury. Finally,
Fritz alleges
that the District Court erred by utilizing a preponderance of the evidence
standard in
evaluating the factors of type and quantity of drugs, where those factors
should have been
submitted to the jury and proven under a reasonable doubt standard.
     When reviewing sentencing decisions, this Court exercises plenary
review over
legal questions about the meaning of the sentencing guidelines, but
applies the clearly
erroneous standard to factual determinations underlying their factual
application. United
States v. Price, 13 F.3d 711, 732 (3d Cir. 1994), cert. denied, 514 U.S.
1023 (1995). Fritz
has not demonstrated clear error on the part of the District Court in the
application of the
sentencing guidelines. We find that the District Court properly applied
the guidelines
with respect to the calculation of amounts of crack cocaine and with
respect to both
upward sentencing adjustments. With regard to the increase in Fritz's
sentence from
twenty to thirty years, Fritz was given proper notice of the use of his
prior conviction in
consideration of his sentence pursuant to 21 U.S.C.   851(a), and was
properly sentenced
to thirty years' imprisonment pursuant to 21 U.S.C.   841 (a). Finally,
we find that the
District Court properly sentenced Fritz based on a preponderance of the
evidence
standard.
     For the foregoing reasons, the judgment of the District Court will be
affirmed.


TO THE CLERK:

     Please file the foregoing Memorandum Opinion.



                             By the Court,



                             /s/Jane R. Roth
                                  Circuit Judge
