United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 02-2904SI

___________

United States of America, *

*

Appellee, * On Appeal from the United

* States District Court for

v. * the Southern District of

* Iowa. 

* 

Jim Keith Eis, * [To be published]

*

Appellant. *

___________

Submitted: March 10, 2003

Filed: March 18, 2003

___________

Before WOLLMAN, RICHARD S. ARNOLD, and MURPHY, Circuit Judges.

___________

PER CURIAM.

Jim Keith Eis, the appellant in this case, has been convicted on three counts:

conspiracy to manufacture methamphetamine, in violation of 21 U.S.C. §§846,

841(a)(1), and 841(b)(1)(A), attempt to manufacture methamphetamine, in violation

of 21 U.S.C. §§841(a)(1) and 841(b)(1)(a), and 18 U.S.C. §2, and creating a

substantial risk of harm to human life while manufacturing or attempting to

manufacture a controlled substance, in violation of 21 U.S.C. §858. The jury
1

The Hon. Charles R. Wolle, United States District Judge for the Southern

District of Iowa.

-2-

returned a verdict after a three-day trial. Thereafter, the District Court1

 imposed a

sentence of life in prison on counts I and II. The sentence on Count III was ten years,

to be served concurrently. The life sentence was mandatory under the Sentencing

Guidelines as applied by the District Court. 

After considering the briefs and record, and hearing oral argument, we affirm.

The sentence imposed makes the case a calamitous one indeed for the defendant, and

any appeal in such a case must be taken seriously. Having considered the points

assigned as error on the appeal, however, we conclude that none of them is substantial

in a legal sense. In our view, some of the issues do not need to be discussed, and the

others do not require extended discussion. We make the following brief comments

by way of explaining our decision. 

1. The indictment charged, and the jury found beyond a reasonable doubt, that

50 or more grams of methamphetamine were involved in counts I and II. At the time

of sentencing, the District Court found, largely on the basis of trial testimony, that

Mr. Eis was responsible for 957.52 grams of methamphetamine. As the appellant

argues, the government has the burden of proof to show drug quantity by a

preponderance of the evidence. Our review of the District Court's findings on this

subject is for clear error only. We find no such error. A principal argument

advanced by the appellant is that the testimony of certain witnesses, used against him

on this point, was incredible, because the witnesses were testifying in order to gain

advantage for themselves, in the form of reduction of their own sentences. It is

perfectly true that testimony of this kind is suspect and should be weighed with care.

Here, however, the District Court, which heard the witnesses, believed them after

being fully advised of the extent of the consideration being gained by them for their

testimony. This sort of finding, as to the credibility of live witnesses, is virtually
-3-

never clearly erroneous. It is for the trier of fact to make these kinds of judgments.

Nothing in the present record leads us to believe that any reversible error occurred in

this respect. 

2. Mr. Eis urges that the District Court erred in enhancing his sentence on the

basis of an alleged obstruction of justice on his part. There was evidence that Mr. Eis

advised a fellow inmate, one Harland, to tell law enforcement that a co-defendant,

George Arndt, was responsible for the methamphetamine laboratory that officers had

discovered. In context, Mr. Eis was asking Mr. Harland (if this evidence is believed,

as it was by the trier of fact) to place more of the blame on Mr. Arndt than the facts

warranted. This is a clear attempt to impede the investigation, and, accordingly,

warrants an enhancement for obstruction of justice under USSG §3C1.1. Mr. Eis

argues that the conversation was not taken seriously by Mr. Harland, as evidenced by

the fact that he did not accept the invitation to place the blame on Mr. Arndt. An

obstruction of justice does not have to be completed, or successful, to qualify for the

enhancement. An attempt is sufficient, and that is what the evidence showed here.

3. An enhancement was also applied for Mr. Eis's role in the offense. The

Court found that he was a leader or organizer of a criminal activity that involved five

or more participants or was otherwise extensive. That five or more participants were

involved is undisputed. The record also establishes that Mr. Eis gave directions to

more than one of these participants. On appeal, defendant urges that he could not

qualify for the enhancement unless he exercised authority over at least five other

persons. The guideline, §3B1.1, does not say this, and neither does the case cited by

defendant, United States v. Sarabia-Martinez, 276 F.3d 447 (8th Cir. 2002). Indeed,

the case says the opposite: "[T]he defendant need only have directed one other

participant to warrant an enhancement." Id. at 451, citing United States v. McMullen,

86 F.3d 135, 138-39 (8th Cir. 1996); USSG §3B1.1, App. Note 2.
-4-

4. The defendant also contends that the evidence failed to show that a

substantial risk of harm to the life of a minor existed as a result of his conduct, and

that the evidence was legally insufficient to support the convictions for conspiracy

and attempted manufacturing. We have considered these arguments and hold that

they are without merit. 

For these reasons, the judgment and sentence imposed by the District Court are

Affirmed. 

A true copy.

Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.