Nos. 89-7005 and 89-7008 to 89-7012.United States Court of Appeals, Tenth Circuit.
November 16, 1990. Rehearing Denied February 22, 1991.
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D.D. Hayes of Bonds, Matthews, Bonds Hayes, Muskogee, Okl., for defendants-appellants Russell Sullivan, Eugene Fisher and Jimmy Roger Wright.
Peter Goldberger (Alan Ellis, Pamela A. Wilk and James H. Feldman, Jr., Philadelphia, Pa., were with him on the brief), for defendants-appellants Mary Ann Sullivan, Tammy LaWan Sullivan and Steve Brown.
Sheldon J. Sperling, Asst. U.S. Atty. (Roger Hilfiger, U.S. Atty., Muskogee,
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Okl., was with him on the brief), for plaintiff-appellee.
Appeal from the United States District Court for the Eastern District of Oklahoma.
Before HOLLOWAY, Chief Judge, TACHA, Circuit Judge, and VAN BEBBER,[*] District Judge.
HOLLOWAY, Chief Judge.
I.
[1] These consolidated appeals are from convictions and sentences following a jury trial of six codefendants for various drug and other offenses. The defendants — members of an extended family, and one friend of the family — were charged in an eight-count indictment as follows:
II.
[7] The genesis of this case is a 1988 cooperation agreement among Melvin Ray Rogers, his wife Evelyn, their son Steve Howell, and the government. Melvin Rogers had been convicted four months earlier of four drug related felonies, and agreed to cooperate with the government in return for the government’s promise not to prosecute Rogers’ wife and son, and to assist Rogers with a Rule 35 motion in connection with his conviction.[1]
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sent Evelyn Rogers to the Sullivan home to “see what they were up to.” XIII R. at 975. At trial Evelyn Rogers testified that when she arrived at the Sullivan house, she saw boots by the door that smelled like amphetamine. X R. at 322-23. She offered to sell the Sullivans leftover chemicals from their earlier cooks, and, according to Evelyn, Mary and Russell Sullivan instead expressed an interest in using the chemicals to manufacture more amphetamine to make more money. Id. at 323. A week or two later, the Sullivans invited Evelyn to return to the Sullivan house for a weekend. Evelyn testified that on that occasion they discussed setting up a drug lab. Id. at 326-27. According to Evelyn, Russell and Mary Sullivan said they needed “the whole set up, mantle, jug, condenser . . . and 55 pounds of [phenylacetic acid].” The Sullivans “said they had everything else.” Id. at 329. Evelyn told them she could get the necessary materials.
[10] Mrs. Rogers obtained the needed materials from the case agents and arranged to meet Mary and Russell Sullivan at a motel in Antlers, Oklahoma, to discuss delivery. On July 2, 1988, Evelyn Rogers delivered the glassware furnished by the government agents to the Sullivans’ garage. Evelyn testified that she helped Russell and Mary Sullivan hide the glassware behind the Sullivans’ home in the weeds and bushes. The following day, Evelyn called Russell Sullivan from a motel in Antlers. She asked if he could meet her at the motel room. Russell agreed, and he and Mary drove to Antlers where they met with Evelyn Rogers and her son, Steve Howell. The conversation between the two codefendants and two informants was recorded.[3] During the conversation the participants discussed previous cooks, certain difficulties they had had with Eugene Fisher, prospects of getting Melvin Rogers out of jail to do a big cook, the events of the previous evening, and a prospective location for the cook they were planning. [11] Approximately a week later, Russell and Mary Sullivan went to Irving, Texas, to meet with Steve Howell and Evelyn Rogers concerning their efforts to obtain the phenylacetic acid. According to Evelyn, Russell had in his possession a “clip” that “he could drop in his AR-15 in just a matter of seconds.” X R. at 375-76. Russell said “it would rock and roll then.” Id. [12] On July 18, 1988, Agent Means provided Steve Howell with 55 pounds of phenylacetic acid which Howell then delivered to the Sullivan home. XIII R. at 989. Howell spent that night with the Sullivans at their home. The following morning, Steve Howell and Russell Sullivan weighed the phenylacetic acid in the Sullivans’ garage and then, accompanied by Mary Sullivan, went to Steve Brown’s house where they examined some “cut” that they planned to use to dilute the product. The three men then loaded Steve Brown’s trailer with clothes and groceries, went to pick up the chemicals, and then went to invite Eugene Fisher and Jim Wright to participate. Wright later arrived with five gallons of “a chemical.” Id. at 545. Meanwhile, Russell Sullivan and Steve Howell went to a nearby Wal-Mart to buy duct tape and electrical plugs, and then returned to the Sullivan house. Sullivan and Howell made one more trip to Steve Brown’s house to pick up the glassware and chemicals which they then loaded into Russell Sullivan’s truck. Steve Howell, Russell Sullivan, and Steve Brown then drove to Jack Brown’s barn, some eight to ten miles from the Sullivans’ home, where they then unloaded the truck and began setting up the drug laboratory in the barn. [13] Howell testified that Eugene Fisher and Jimmy Wright then arrived at the lab site with two five-gallon cans. Howell said that Russell Sullivan and Steve Brown hooked up the electrical panel board in the barn while Fisher and Wright began putting the phenylacetic acid into the jugs that were already set up.Page 1410
[14] Eugene Fisher and Jimmy Wright both claimed at trial that they were tricked into coming to the lab site. Fisher testified that on July 19, at dusk, Howell appeared at his home to see if he wanted to go riding around. Howell and Fisher then picked up Jimmy Wright who testified that Howell asked him to assist him in working on a car. Both Fisher and Wright testified that Howell then drove the vehicle to the scene of the lab site where, to their surprise, Howell advised them that he was going to make dope. They testified that Howell supervised and set up the drug laboratory and then asked Fisher and Wright if they would stay and watch the lab while Howell ran an errand. Fisher and Wright testified that they attempted to leave the lab site, but were unable to start the car left there by Howell. They testified that because they were left without transportation, they spent the night in a small trailer near the barn. The following morning, the lab site was raided by several law enforcement agents at which time Russell Sullivan, Eugene Fisher, and Jim Wright were arrested. Steve Brown had left the night before with Steve Howell, and was arrested the following day. Mary Sullivan and Tammy Fisher were arrested at the Sullivan home. [15] Officers raided the drug lab site and the residences of Russell and Mary Sullivan and Steven Brown pursuant to search warrants obtained from a state court. An additional warrant for a search of the Fishers’ residence was secured later that afternoon. Substantial evidence was seized as a result of the searches: controlled substances, including a number of marijuana plants found growing near a pond in the vicinity of the Sullivan home, drug manufacturing equipment, motor vehicles, firearms, and a large number of records, receipts, documents, and other papers said to be related to the drug trafficking enterprise. A pretrial motion to suppress evidence was filed for all defendants. The trial court denied the motion after a hearing. I R., doc. 20, at 6. [16] The jury trial concluded with the guilty verdicts. These appeals followed from the judgments on the verdicts. III. [17] Sufficiency of the Indictment[18] A. Count 4
[19] The defendants contend that Count 4 of the indictment is defective for failure to allege an essential element of the offense. Count 4 charges that the six defendants “did knowingly and unlawfully use or carry firearms during the commission of a felony …” in violation of 18 U.S.C. § 924(c)(1).[4] That section makes it a crime to use or carry a firearm “during and in relation to any drug trafficking crime….”18 U.S.C. § 924(c)(1) (1988) (emphasis added). Defendants argue that Count 4 is fatally defective for failing to charge that the firearms in question were used or carried “in relation to,” and not merely “during,” the charged drug conspiracy.[5]
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defendants here. In Bullock, there was a challenge to Count 9 of that indictment. That Count 9 charged a violation of 18 U.S.C. § 2 and 924(c) for knowingly using or carrying firearms unlawfully “during the commission of a drug trafficking [crime].” (at 1414). The Bullock panel held that as to Count 9 and another count challenged in that indictment for the first time on appeal, the indictment was adequate. (at 1417).
[21] Here, Count 4 of the indictment alleged that the defendants “did knowingly and unlawfully use or carry firearms during the commission of a felony … to-wit: conspiracy to manufacture amphetamine….” See note 4, supra. We see no reasonable basis for distinguishing the wording of the charge in this Count 4 from the language of Count 9 in the Bullock indictment, which the panel there upheld. Accordingly, we must uphold Count 4 of the instant indictment. [22] B. Count 5Page 1412
allege that the AR-15 was a “machine gun” within the meaning of 26 U.S.C. § 5845(b),[8] and not a “rifle” (§ 5845(c)), we do not think the failure to specify which statutory definition applied to the AR-15 Rifle impermissibly hindered the defendants’ ability to prepare their defense or deprived them of their Fifth Amendment right to trial on charges made by a grand jury. We hold that Count 5 sufficiently charged a violation of 26 U.S.C. § 5861(d).
IV. [28] Improper Use of 404(b) Evidence
[29] All of the defendants argue that they were denied a fair trial because the prosecutor repeatedly elicited evidence of uncharged crimes, wrongs or other acts in contravention of Federal Rules of Evidence 403 and 404.[9] They make three related arguments: first, that the trial court abused its discretion when it admitted such evidence; second, that the defendants were unfairly prejudiced by the prosecutor’s improper use of such evidence after the trial court sustained defendants’ objections, and the judge’s failure to strike it or instruct the jury to disregard it; and third, that the prosecutor’s repeated attempts to use the evidence in disregard of the court’s admonitions constitute prosecutorial misconduct.
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the jury either because the trial court admitted the testimony over the defendants’ objection or, as was more often the case, because the prosecutor elicited improper references to those events despite sustained objections to the testimony and in disregard of the district court’s repeated admonitions to avoid such testimony. In every such instance, the defendants unsuccessfully moved for a mistrial.
[33] 1. The Mississippi IncidentQ. Well, did anyone else participate in the conversation, actually say things other than you and Russ and Mary?
A. No.
Q. Did you talk at all with Millie?
A. Yes.
Q. And what did you talk with Millie about?
[35] Id. at 529. Defense counsel again objected, and the court again questioned the relevancy of the testimony. This time, however, the court overruled defense counsel’s objection on the prosecutor’s representation that Millie was an unindicted and unnamed coconspirator. Id. at 529-30. The prosecutor then asked Mr. Howell what he spoke with Millie about. Howell answered, “we talked about when Eugene went to Mississippi to cook.” Id. at 530 (emphasis added). Defense counsel immediately moved for a mistrial. [36] The court expressed amazement at the prosecutor’s effort to inject such evidence into the case. Id. at 531-532. The court twice noted that the evidence was unnecessary to the government’s case, and again asked the prosecutor why he thought it was relevant. The prosecutor answered, “because I think it’s part of the history of the conspiracy.” Id. at 533. The judge ultimately ruled in favor of admissibility, but expressed grave doubts as to the relevancy of the testimony and refused to give a cautionary instruction because the judge believed the damage had been done.[11] The court did not expressly rule on defense counsel’s motion for a mistrial. [37] Near the end of the trial, the prosecutor returned again to the alleged Mississippi cook and referred to amounts of ammunition present there.[12] Defense counsel objected.Page 1414
The court sustained the objection, but declined to hear defense counsel’s motion for a mistrial until the jury was excused for the day. Id. at 1846. Later, counsel moved for a mistrial on the ground that the prosecutor had again referred to the Mississippi incident, in violation of the court’s previous order Id. at 1895-96. The prosecutor again argued that the Mississippi incident was part of the history of the conspiracy and that defense counsel had opened the door by asking the defendant if he knew anything about drugs, or if he knew how to manufacture them. Id. at 1896. The court rejected the prosecution arguments and again admonished the prosecutor to stay away from the events that allegedly occurred in Mississippi. XVI R. at 1897-98.
[38] Despite the admonitions, the prosecutor again referred to the alleged Mississippi cook during his closing argument. XVII R. at 2178.[13] Defense counsel again unsuccessfully moved for a mistrial after the prosecutor’s closing argument. Id. at 2246-47. [39] 2. The Sniper TestimonyPage 1415
from the court. The judge cautioned the witness to merely answer the questions, but did not strike the testimony or admonish the jury to disregard it. Id. at 864.
[43] The subject arose again during the prosecution’s direct examination of Agent Means. The prosecutor had returned to the subject of the raid on the drug lab and Agent Means said that because he was “fearful that a sniper may be concealed in the woods,” he sent four or five men into the woods 30 to 40 minutes before his main assault team went in. Id. The court sustained defense counsel’s timely objection on the ground that the testimony was cumulative. Id. at 102-03. [44] 3. The Irving, Texas IncidentPage 1416
[as] the Mississippi incident,” and that “none of the defendants has shown prejudice which could negate a finding of harmless error.” Appellee’s Joint Brief at 67. [49] B. Analysis[52] Id. 485 U.S. at 691, 108 S.Ct. at 1502 (citations omitted). [53] The improper interjection of prejudicial evidence concerning the “Mississippi cook” and sniper testimony compels us to remand for a new trial. The testimony referring to a “Mississippi cook” was clearly remote and not offered for a proper purpose. After the trial judge sustained two objections to the prosecution’s effort to elicit Howell’s testimony about the Mississippi incident, the prosecutor replied that the evidence was relevant because “it’s part of the history of the conspiracy.” XI R. at 533. Such a general assertion as a basis for introducing evidence of prior wrongs or conduct is not sufficient for purposes of Rules 403 or 404(b). See United States v. Doran, 882 F.2d at 1523. In some conspiracy cases we have upheld the admission of evidence to establish identity, intent, motive, or plan as relevant and proper. See, e.g., United States v. Mora, 845 F.2d 233, 237 (10th Cir.) cert. denied, 488 U.S. 995, 109 S.Ct. 562, 102 L.Ed.2d 587 (1988); United States v. Davis, 780 F.2d 838, 847 (10th Cir. 1985). When specifically relevant in such circumstances, particular history of a conspiracy may be probative. Here, however, the prosecutor made no effort to explain a probative purpose or connection of the earlier conduct in Mississippi to this case. At various points, the trial judge found that the evidence was unnecessary, irrelevant and prejudicial. [54] We likewise are convinced that the evidence concerning the supposition of a sniper being in the area of the lab site was inadmissible and prejudicial. The testimony elicited from Officer Duncan referred to using an armed team because defendant Wright was supposed to be in the woods with a sniper rifle. XI R. at 710. Although the court sustained objections to questions about the sniper, the trial courtthe protection against such unfair prejudice emanates not from a requirement of a preliminary [Rule 104(a)] finding by the trial court, but rather from four other sources: first, from the requirement of Rule 404(b) that the evidence be offered for a proper purpose; second, from the relevancy requirement of Rule 402 …; third, from the assessment the trial court must make under Rule 403 to determine whether the probative value of the similar acts evidence is substantially outweighed by its potential for unfair prejudice …; and fourth, from [Rule] 105, which provides that the trial court shall, upon request, instruct the jury that the similar acts evidence is to be considered only for the proper purpose for which it was admitted.
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did not strike the testimony or admonish the jury to disregard it, XII R. at 864, and denied a motion for a mistrial.
[55] We are convinced that the repeated interjection of such prejudicial evidence violated Rule 404(a). The evidence of other wrongs did not tend to establish a consequential fact at issue, and instead tended to prove only criminal disposition. The rule clearly prohibits the introduction of evidence of a person’s character or trait merely to prove action in conformity with such character. United States v. Temple, 862 F.2d 821, 824 (10th Cir. 1988). The “Mississippi cook” evidence was of this type and it was emphasized to the prejudice of the defendants. Id. at 824; see also United States v. Hogue, 827 F.2d 660, 663 (10th Cir. 1987); United States v. Shomo, 786 F.2d 981, 986 (10th Cir. 1986); United States v. Shepherd, 739 F.2d 510, 512-13 V. [59] Jury Instructions[60] A. Entrapment Instruction
[61] All of the defendants except Russell Sullivan and Tammy Fisher argue that the district court erred in refusing to give an entrapment instruction as to Counts 2 through 5.[16] The defendants requested an entrapment instruction prior to the close of the evidence, and again after the closing arguments. See
XVII R. at 2153.[17] The district judge did not articulate his reason for refusing to give the requested instruction, but he had earlier expressed the view that the defendants were not entitled to an entrapment instruction unless they admitted all the essential elements of the crimes charged. See XI R. at 745-46.
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clearly held to the contrary in Mathews v. United States, 485 U.S. 58, 62, 108 S.Ct. 883, 886, 99 L.Ed.2d 54 (1988). I Mathews the Court held that a defendant is entitled to an entrapment instruction whenever there is sufficient evidence from which a reasonable jury could find entrapment even if the defendant denies one or more elements of the crime. 485 U.S. at 62, 108 S.Ct. at 886. The only issue before us, therefore, is whether the evidence warranted such an instruction. Although we must reverse on grounds already discussed, we consider the issue because of its likely significance on retrial.
[63] The defense of entrapment has two elements: “First, government agents must have induced the defendant to commit the offense; and, second, the defendant must not have been otherwise predisposed to commit the offense, given the opportunity.”United States v. Fadel, 844 F.2d 1425, 1429 (10th Cir. 1988) Mathews, 485 U.S. at 63, 108 S.Ct. at 887. Inducement is “government conduct which creates a substantial risk that an undisposed person or otherwise law-abiding citizen would commit the offense.” United States v. Ortiz, 804 F.2d 1161, 1165 (10th Cir. 1986). “[It] may take the form of `persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of reward, or pleas based on need, sympathy or friendship.'”Id. (quoting United States v. Burkley, 591 F.2d 903, 913 n. 18 (D.C. Cir. 1978), cert. denied, 440 U.S. 966, 99 S.Ct. 1516, 59 L.Ed.2d 782 (1979)). Predisposition is the “defendant’s inclination to engage in the illegal activity for which he has been charged,” Ortiz, 804 F.2d at 1165, and “may be inferred from a defendant’s history of involvement in the type of criminal activity for which he has been charged, combined with his ready response to the inducement offer.” Id. The defendants must point to evidence of both inducement and lack of predisposition to establish a genuine issue concerning the origin of criminal intent. Id.[18] Although we have variously described the degree of proof required to submit an entrapment defense to a jury, “the test is whether the evidence, regardless of amount, creates a factual issue.” Fadel, 844 F.2d at 1430. If the evidence on the question of entrapment is conflicting, therefore, the question should be submitted to the jury. [64] We believe the evidentiary record in this case warranted a jury instruction on entrapment with respect to Counts 2, 3 and 4.[19] These four defendants argue that they have no prior felony convictions and that the prosecution failed to demonstrate that any one of them was predisposed to commit the crimes charged. All of the defendants testified and they each denied any prior involvement in the manufacture of amphetamines or any related illegal drug trafficking activity. Although there was evidence from which a jury might conclude otherwise and infer predisposition, this point was a factual dispute.[20] [65] Furthermore, all of the defendants testified that they were induced in one way or another by the government informants to participate in the 1988 drug manufacturing effort. The defendants were first approached by Evelyn Rogers at the direction of Agent Means. Mary Sullivan testifiedPage 1419
that Mrs. Rogers repeatedly entreated her to assist in the venture to help alleviate Mrs. Rogers’ supposedly desperate situation. XVII R. at 2062-65, 2067, 2069-70.[21] She further testified that she only reluctantly agreed to go to the Antlers motel and participate in the discussion there with her husband, Mrs. Rogers and Steve Howell. Id. at 1076-77. Jimmy Wright and Eugene Fisher both testified that they were tricked into going to the lab site.[22] Finally, it is undisputed that the government provided the defendants with most of the necessary glassware for the drug lab, and 55 pounds of phenolacetic acid. “Of course evidence that government agents merely afforded an opportunity or facilities for the commission of the crime would be insufficient to warrant [an entrapment] instruction.” Mathews, 485 U.S. at 66, 108 S.Ct. at 888. Nevertheless the evidence here was relevant and tended to support the defendant’s version of the facts.
[66] We are persuaded that there was sufficient evidence to go to the jury on entrapment and that the instruction should have been given on Counts 2, 3 and 4 for defendants Mary Sullivan, Eugene Fisher, Jimmy Wright and Steve Brown, as well as for Russell Sullivan for whom an entrapment instruction was given. On retrial, if a similar record is made, we feel the charge should be given.[23] [67] B. Defendants Claim of Error Due to Lack of “Balanced” Credibility InstructionPage 1420
the interest, if any, which a witness may have in the result of the trial, inter alia. Tr. at 2235.
[70] We have considered the defendants’ several related complaints concerning the instructions and believe they are without merit except, as noted, with respect to submitting an entrapment instruction.VI. [71] Other Evidentiary Rulings[72] A. Evidence of Multiple Firearms
[73] Defendants contend that the trial court erred when it admitted in evidence a .22 caliber rifle seized from a trailer approximately 100 yards from the lab site and photographs of approximately 20 weapons seized from the Sullivan and Fisher residences.[24] They say the firearms were not relevant since there was no credible evidence linking the firearms to any of the crimes charged. Defendants also argue that to the extent the evidence was relevant, its probative value was substantially outweighed by the danger of unfair prejudice. The prosecution contends that the firearms, or photographs of them, were admissible as evidence of the crimes charged under a “tools of the trade” theory,[25] and that any error as to the admissibility of the firearms was harmless since there was other substantial and direct evidence to support the defendants’ convictions.
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[76] Furthermore, although the large number of weapons involved here creates some risk of undue prejudice, we are persuaded that any undue prejudice was outweighed by the probative value of the evidence. Before the weapons were admitted, several witnesses testified that the defendants routinely carried firearms, both for legal and illegal purposes. Moreover, the defendants testified that it was their general practice to possess and carry firearms for recreational purposes and that most of the persons in the community possessed guns. E.g., XIV R. at 1332, 1338; XV R. at 1558. Finally, the government did not attempt to parade the weapons before the jury; instead, it relied on photographs of the weapons found at the Sullivan and Fisher residences. This use of the evidence was proper. [77] In sum, we feel there was ample evidence in this case from which a jury could infer that the defendants’ access to firearms not only facilitated their drug manufacturing efforts, but also provided the type of protection the defendants believed they needed for their operation. Admission of the evidence was not error. [78] B. Exclusion of Evidence of Russell Sullivan’s Mental Condition[83] 655 F.2d at 520. See also United States v. Edwards, 90 F.R.D. 391, 397-98 (E.D.Va. 1981) (Rule 12.2(b) applies to testimony of diminished intellectual capacity or stupidity affecting mental state required for the income tax offense); United States v. Hearst, 412 F. Supp. 863, 870 (N.D.Cal. 1975) (Rule 12.2(b) applies to proffered testimony on mental and psychological brainwashing pressure). [84] In sum, we feel the notice requirements of Rule 12.2 apply to testimony such as that involved here. However, the application of the rule and discretionary rulings as to whether leave should be granted to file such notice on remand are matters on which we express no opinion. The circumstances are obviously far different now with the passage of time. The trial judge can reassess the matter on remand. [85] C. Claim of erroneous denial of suppression of evidence“The purpose in requiring notice of mental condition evidence is as compelling
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in an entrapment defense as it is in an insanity defense. In either case, the government must prepare for a psychiatric defense and it should have the requisite notice to avoid trial delay and provide adequate preparation.”
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property description specifically covers a “white mobile home” and says it is one facing west with a redwood deck. It is true that in the concluding portion of the search warrant authorizing search there is a provision for “search of said person, vehicle and/or house, building and premises, the curtilage thereof. . . .” Despite this singular reference to “house,” we feel the warrant should be read in a practical sense and as a whole. Doing so, we hold that the warrant and authorization were intended to cover the mobile home. The phrase last quoted would appear to be a standard form of language of a boilerplate sort, and this should be read with the particular description of the property in the earlier part of the warrant.
[91] In sum, we are convinced that the trial judge properly denied suppression of the unfiled or draft income tax return, firearms and truck seized at the Fisher’s mobile home. [92] 2. The affidavits.Page 1424
accepted the credibility of the drug agent in his statement that the mistakes were inadvertent. The defendants have not demonstrated that the findings of the judge were clearly erroneous. Under Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 2684, 57 L.Ed.2d 667 (1978), it was the burden of the movants to demonstrate deliberate falsity or reckless disregard for the truth by the affiant. We hold that the findings underlying the judge’s order were not clearly erroneous and the denial of suppression was not error.
[97] 3. The claim of lack of particularity in the search warrants’ descriptions VII. [100] Prosecutorial Misconduct
[101] The defendants argue that they were denied a fair trial because, in his closing argument, the prosecutor improperly commented that the trial judge had already passed on the sufficiency of the evidence and improperly referred to matters outside the record. Although we reverse and remand for a new trial on other grounds, we address these arguments because of their importance and possible recurrence on retrial.
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[102] A. Comment on the Sufficiency of the Evidence[104] XVII R. at 2204. At the conclusion of the argument, defense counsel moved for a mistrial, which motion was overruled. Id.And don’t believe this defense lawyer when he says that all we have to do is decide to prosecute and that’s the end of the story. It’s not. There’s always a judge involved. And you can be assured, based on the conduct of this trial, that this judge isn’t going to put up with any Mickey Mouse about the government trying to railroad somebody into a conviction if the evidence does not substantiate it.
[107] 410 F.2d at 384. The Fourth Circuit reversed, reasoning that “the jury may well have been left with the impression that the trial judge had been persuaded by the prosecution’s case.” id., and stating further:You all are the ones to decide whether I have proved the facts under the law. But legally, I have satisfied the court that it can go to the jury for your determination.
[108] Id. at 385. Because we must reverse on other grounds, we need not decide whether in the context of this trial this comment, standing alone, would warrant reversal. We nevertheless emphasize that such comment was clearly improper and should not occur on retrial. [109] B. Reference to Matters Outside the RecordIn arguing a close case before the jury, it is manifestly unfair for the prosecutor to throw into the scales the weight of the judge’s influence by intimating, even mildly, that the judge thinks the defendant guilty.
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of the evidence, the prosecutor should not have read from the purported transcript, the accuracy of which was not determined and which was not in evidence.[32]
VIII. [112] The Brady Claim
[113] The defendants argue that they were deprived of due process because the government destroyed handwritten notes made during Agent Means’ investigative interviews with the three government informants. The issue arose at trial when defense counsel’s cross examination of Melvin and Evelyn Rogers disclosed that Means had conducted as many as thirty-two interviews with the informants, whereas the government provided interview notes for only five of those meetings.[33] In some but not all cases the government apparently provided defense counsel with a typewritten report of the interview in lieu of the agent’s handwritten notes. According to the defendants’ briefs, when defense counsel confronted the prosecutor with this information, he was informed that Means had “shredded” the notes pursuant to “departmental policy.” See
Wright Br. at 17; Sullivan Br. at 7. Thereafter, defense counsel filed a motion to dismiss for suppression of evidentiary material in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The trial court denied the motion by minute order.[34]
[116] Id.; see also California v. Trombetta, 467 U.S. 479, 491, 104 S.Ct. 2528, 2535, 81 L.Ed.2d 413 (1984) (in the absence of a showing of bad faith or official animus, “the Due Process Clause of the Fourteenth Amendment does not require that law enforcement agencies preserve [potentially exculpatory] breath samples in order to introduce the results of breath analysis tests at trial.”). [117] As is clear from Youngblood, however, if the interview notes are Brady material, then the good or bad faith of the government is irrelevant. See Youngblood, 488 U.S. at 63, 109 S.Ct. at 340; Brady, 373 U.S. at 87, 83 S.Ct. at 1197. Here the defendants argue that the agent’s notes would have revealed inaccuracies and inconsistencies in the trial testimony of key prosecution witnesses and therefore would have been useful to impeach the credibility of those witnesses. “Impeachment evidence, however, as well as exculpatory evidence, falls within the Brady rule.” United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985) (citing Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 765, 31 L.Ed.2d 104 (1972)); see United States v. Buchanan, 891 F.2d 1436, 1443The Due Process Clause of the Fourteenth Amendment, as interpreted in
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Brady, makes the good or bad faith of the State irrelevant when the State fails to disclose to the defendant material exculpatory evidence. But we think the Due Process Clause requires a different result when we deal with the failure of the state to preserve evidentiary material of which no more can be said than that it . . . might have exonerated the defendant.
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both factual conclusions could be determinative on this issue, on remand a hearing should be held on these questions.[38]
IX. [119] Sufficiency of the Evidence
[120] All of the defendants except Jim Wright and Eugene Fisher claim that the evidence is insufficient to support their convictions for one or more of the counts charged in the indictment. We address these claims because if they have merit, a retrial would be prohibited by the Double Jeopardy Clause. Burks v. United States, 437 U.S. 1, 18, 98 S.Ct. 2141, 2151, 57 L.Ed.2d 1
(1978).
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[125] While the evidence against Tammy Fisher on Count 1 is not extensive, we believe it is sufficient to support the jury’s verdict. The most damaging evidence against Tammy is, of course, the testimony that she helped weigh chemicals and helped pack groceries and bedding into a truck used to move lab equipment to another location. A rational jury could reasonably infer from those acts that Tammy Fisher knew the essential objectives of the conspiracy and knowingly became a part of it. That is sufficient See, e.g., United States v. Savaiano, 843 F.2d 1280, 1296 (10th Cir. 1988). [126] 2. Count 2.Page 1430
for the delivery of phenylacetic acid by Steve Howell; that she participated in the recorded conversation of July 3, 1988, in which she discussed the planned amphetamine cook; and that on the day before the lab was set up, she told Steve Howell that she had been to the library “studying up . . . on cooking procedures.”See X R. at 330-36, 343-44, 367, 375; XI R. at 522-25, 557.
[132] We are convinced there is sufficient evidence from which a rational trier of fact could find Mary Sullivan guilty of attempted manufacture of amphetamine beyond a reasonable doubt. [133] C. Illegal Possession of a Firearm[134] 1. Count 5.Page 1431
moved the gun cabinet and stuff” into his mother’s bedroom. Id.
at 1915. Mary Sullivan admitted that the AR-15 belonged to her deceased son and that she kept all of his property after his death, including the guns. Id. at 2073-74. Finally, the machine gun was found in the master bedroom of the Sullivans’ home along with a nearby auto sear and 30-shot clips. XII R. at 868-69. The government argues, and we agree, that this is sufficient evidence to support an inference of joint constructive possession. See, e.g., United States v. McCoy, 781 F.2d 168 (10th Cir. 1985)
Page 1432
possible trouble with the “feds.”[44] We feel the evidence is sufficient to sustain the convictions of Eugene Fisher, Steve Brown, Jimmy Wright and Russell Sullivan on Count 4.
[143] However, we are unable to agree with the government that its evidence was sufficient with respect to the conviction of Mary Sullivan on Count 4. The government does not cite any specific evidence to indicate that she carried or used a firearm. We agree that there was sufficient proof that both Mary and Russell Sullivan had joint and constructive possession of the AR-15 rifle at their home, but that was in connection with a conviction fo possession of an unregistered firearm. Count 4, however, is a different substantive charge under 18 U.S.C. § 924(c). As to that offense, we are required to determine whether the proof was sufficient to sustain the charge under that section.[45] We are persuaded to agree with the Ninth Circuit’s construction of the statute in United States v. Stewart, 779 F.2d 538, 540 (9th Cir. 1985) (opinion of Kennedy, J.), that “the evident purpose of [§ 924(c)] was to impose more severe sanctions where firearms facilitated, or had the potential of facilitating, the commission of a felony.” This results from the inclusion within the statutory elements of the language that the using or carrying of the firearm must be “during and in relation to” a crime of violence or a drug trafficking crime. With this in mind, we do not find sufficient evidence in this record that Mary Sullivan carried or used firearms “during and in relation to” the underlying drug conspiracy offense. The constructive possession proof sufficient with respect to the charge concerning possession of the unregistered AR-15 rifle is not sufficient to sustain the Count 4 conviction within the meaning of § 924(c). A conviction must be supported by sufficient substantial evidence, and not mere suspicion of guilt. United States v. Troutman, 814 F.2d 1428, 1455 (10th Cir. 1987). [144] In sum, we hold that the evidence was sufficient to support the convictions of defendants Eugene Fisher, Steve Brown, Jimmy Wright and Russell Sullivan on Count 4. Therefore, their argument that retrial of them on this Count 4 charge would be barred by Double Jeopardy principles, Burks v. United States, 437 U.S. 1, 18, 98 S.Ct. 2141, 2151, 57 L.Ed.2d 1 (1978), is without merit. However, the claim to this effect by Mary Sullivan is good, and a judgment of acquittal for her with respect to Count 4 will be entered by the district court on remand. Id. at 18, 98 S.Ct. at 2151. [145] D. Cultivation of MarijuanaPage 1433
that the evidence is insufficient to show that either defendant knowingly manufactured the marijuana.[47]
[147] The government devotes only two very short paragraphs in its brief to this issue. It does not cite record evidence except to rely exclusively on one short passage from the tape recorded conversation of July 3, 1988 in support of its conclusory assertion that “[t]he evidence was sufficient to sustain the challenged convictions of appellants.” Brief of the United States at 57. [148] When the search warrants were executed at the Sullivan residence on July 20, 1988, agent Higbee located 61 live marijuana plants growing in pots “behind the pond and down a little ways.” XIII R. at 1116. Higbee estimated that the location of the marijuana was approximately 100 yards from the Sullivan residence, id. at 1125, but admitted that he did not know who owned the property where the plants were located. Id. at 1124. (The government did not introduce any evidence of ownership of the land in question.) Higbee also testified that there was a path leading from the Sullivan residence in the general direction of the marijuana. Id. at 1118. He admitted, however, that the marijuana was on the opposite side of an approximately seven-acre pond, id. at 1127, and to get to the marijuana he had to walk “up over a dam.” Id. at 1123. The government points to the tape recorded conversation of July 3, 1988, involving Russell and Mary Sullivan, Steve Howell, and Evelyn Rogers, as evidence of Russell and Mary Sullivan’s dominion and control of the marijuana.[48] [149] We think the evidence, both direct and circumstantial, is insufficient to establish the required elements of possession or scienter. Higbee’s testimony clearly is insufficient to support an inference of knowing cultivation as to either Russell or Mary Sullivan. There is no substantial evidence that either defendant participated in growing the marijuana plants, or that they knew the plants existed. The testimony that the plants existed. The testimony that the plants were growing in the area near the Russell’s home, without more, is insufficient. The sounds on the tape would support only a guess as to guilt. [150] Evidence that raises only a suspicion of guilt cannot sustain a criminal conviction. Accordingly, Russell and Mary Sullivan’s convictions on Count 6 are REVERSED with instructions to enter judgments of acquittal as to each defendant on that count. X. [151] Improper Amendment of the Indictment
[152] Defendants contend that their sentences on Counts 1 and 2 were improperly based on 21 U.S.C. § 846 when, prior to what they characterize as an impermissible amendment of the indictment by the trial court, the indictment could only be read to charge an offense under the general conspiracy
Page 1434
statute, 18 U.S.C. § 371.[49] Although defendants style this claim as a challenge to the legality of their sentences, the substance of their argument is that the trial court improperly amended the indictment. Thus, we address defendants’ claim because if it has merit, retrial on the “amended” indictment would be violative of the Fifth Amendment grand jury guarantee. For reasons that follow, we hold that the trial court did not impermissibly amend the indictment.
[153] Counts 1 and 2 of the indictment each charged a conspiracy to violate the narcotics laws in violation of 21 U.S.C. § 846.[50]Page 1435
[154] Defendants now contend that because the firearms offense, together with the narcotics offenses, would be a proper objective of the general conspiracy statute, 18 U.S.C. § 371, the indictment — as originally returned by the grand jury — can only be read to charge a conspiracy under 18 U.S.C. § 371 and not the more specific conspiracy to violate the narcotics laws under 21 U.S.C. § 846. Thus, by striking the § 924(c) objective, defendants conclude, the trial court impermissibly amended the indictment prejudicing the defendants to the extent that their sentences exceed the five-year maximum under 18 U.S.C. § 371. We disagree. [155] We accept the defendants’ premise that a firearms offense under Title 18 is not a cognizable objective of a § 846 conspiracy.[53] The statutory language is clear: 21 U.S.C. § 846Page 1436
was “independent of” and “unnecessary to” the defendants’ convictions on the § 846 conspiracy counts and therefore separable from the indictment. See Miller, 471 U.S. at 136, 105 S.Ct. at 1815; Ford v. United States, 273 U.S. 593, 602, 47 S.Ct. 531, 534, 71 L.Ed. 793 (1927).
[157] Defendants rely on United States v. Quicksey, 525 F.2d 337Page 1437
unable to prepare their defense or were in any way misled by the erroneous inclusion of the firearms objective in Counts 1 and 2. Indeed, the record discloses just the opposite. Defense counsel repeatedly stated that, based on the indictment and the prosecutor’s representations at the arraignment, defense counsel believed that “there was nothing in Counts 1 and 2 but a drug conspiracy.” IV R. at 12; see also id. at 13.[56] This understanding was clearly borne out at trial.
[161] In sum, we hold that defendants were subject to being sentenced under § 846 as charged. The indictment in this case expressly charged conspiracies to violate 21 U.S.C. § 841(a)(1), a provision of the Controlled Substances Act. Section 846 of that Title provides that conspiracy to commit an offense defined in that Act is punishable to the same extent as the offense which is the object of the conspiracy. Thus, the indictment clearly put defendants on notice of the sentencing provisions applicable to 21 U.S.C. § 846. And, as we have already held, the narcotics conspiracies proved at trial were fully contained within the indictment. By contrast, there was no reference in the indictment to 18 U.S.C. § 371 and the defendants have never asserted that they understood the indictment to charge a violation of that section. Cf. United States v. Kennington, 650 F.2d 544, 546 XI. [162] Conclusion
[163] For the foregoing reasons, the convictions and sentences of all the defendants must be reversed and the cause is remanded for further proceedings in accord with this opinion.
COUNT 4
(18 U.S.C. § 924(c)(1) and 18 U.S.C. § 2)
From on or about May 1, 1988, through on or about July 20, 1988, in the Eastern District of Oklahoma, RUSSELL SULLIVAN, EUGENE FISHER, JIMMY ROGER WRIGHT, MARY ANN SULLIVAN, TAMMY SULLIVAN FISHER, and STEVE MORGAN BROWN did knowingly and unlawfully use or carry firearms during the commission of a felony which may be prosecuted in a court of the United States, to-wit: conspiracy to manufacture amphetamine, a Schedule II stimulant controlled substance, contrary to the provisions of Title 21, United States Code, Section 846.
All in violation of Title 18, United States Code, Section 924(c)(1) and Title 18, United States Code, Section 2.
It shall be unlawful for any person —
(d) To … possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record….
26 U.S.C. § 5861(d).
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion or the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
Federal Rule of Evidence 404 provides in relevant part:
(a) Character evidence generally. Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion,….
* * * * * *
(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
And I also want to remind government to comply with United States of America v. Louis Anthony Rivera, which comes out of this court, and it is law, because of the case that emanated, of course, from this court and places a heavy duty, a heavy responsibility on the government in the event there is any 404 material….
IX R. at 64.
THE COURT: Well, I’ll tell you this, you have made this argument, and I am going to let you put it in. But I’ll tell you what I think. You’re so concerned about your position that I think the Circuit Court of Appeals ought to consider this, and if they believe that it is not relevant and something you’re just putting in here for no good reason when it’s not necessary, I think they ought to dismiss the case as against all the defendants. So I’m going to let you go ahead. But that’s my opinion. So you just go ahead with it.
MR. SPERLING: In view of your opinion, Your Honor, I am going to withdraw the question.
THE COURT: It’s too late now, you can’t take it out of these people’s minds, so you go ahead.
MR. SPERLING: I know I can’t, but if they feel strongly enough about this to wish the court to admonish the jury to disregard it I do not object to that.
THE COURT: I’m not going to cure it for you.
….
And I want the record to be clear. If we went back in these cases time after time after time after time, you have done the same thing. And that’s the reason that I think it’s not relevant and it ought to be dismissed.
Rec. vol. XI, at 533-34 (emphasis added).
Q. All right. Incidentally, did Millie own or live in a house in Idabel, in the Idabel area?
A. Yes.
Q. All right. What happened to that house?
A. It burnt.
Q. It burned? How many times did you cook in that house?
A. Never.
Q. Well, you were in Mississippi, too; weren’t you?
A. No.
Q. You have never been in Mississippi?
A. To my knowledge I ain’t.
Q. Isn’t it a fact that you went to Mississippi with some thousand round of ammunition and shot them all up?
A. No.
Q. Millie owns a house in Mississippi; doesn’t she?
A. She used to live in Mississippi.
XVI R. at 1845-46.
And then in a lengthy monologue the use of Millie’s place for a cook, a fire there, is interesting building a safe cooking house. He [referring to Russell Sullivan] says, “That’s one time we should have shot Dennis [Smith] because, boy, he ripped us off that night.
No. If you can’t give me any better reason than that, I’ll sustain the objection, and stay out of how dangerous the lab was, the area, stay out of that area. Just don’t mess with it. There is no need to go into it. If you can’t give me any better reason than you have so far, it’s just more prejudicial than probative. And that’s true of how many agents went in unless there is some reason any particular agent did anything. It’s just not necessary. It doesn’t prove any element of any crime that you can show me.
Id. at 712 (emphasis added).
According to both defendants, Howell first informed them that “he was going to make dope” after they had arrived at the lab site. Id. at 1800, 1859. Fisher testified that Howell then unboxed the lab equipment and assembled it. Id. at 1801-02. Both defendants testified that Howell asked them to stay and watch the operation while Howell was temporarily gone from the scene. Id. at 1801, 1878.
Wright testified that he reluctantly stayed at the lab site id. at 1881-82; that later he and Eugene Fisher attempted to leave, but were unable to start the car left at the scene by Howell. Id. at 1833. Fisher also testified that he and the co-defendants attempted to leave, but were unable to start the car left by Howell. Id. at 1807.
two residences at said location, one of which is a wood frame house which faces west with brown composition shingles and outer walls which are mostly covered in gray rock; the second residence is a white mobile home which is located to the northeast of the first residence ap. [sic] 100 ft. which mobile home faces west and has a redwood deck on the west side and is fully skirted….
Q. (Defense Counsel) Now, the attached affidavit paragraph 2, on Exhibit Number 109, is the residence of the Sullivan family; is that correct?
A. That’s correct.
Q. And on paragraph — and on Exhibit Number 110, it’s identical and it’s a residence of the, I believe, Morgan family?
A. That’s correct.
Q. And then on 111 it’s the residence of the Fisher family; is that correct?
A. That’s correct.
Q. So, in each instance in your affidavit you have advised the magistrate that there is a clandestine laboratory set up at each of these residence; have you not?
A. Yeah. I may have done that inadvertently.
Q. Now, you have done that and that’s a false statement; isn’t it, Mr. Means.
A. No. I think that — I had no intention to make a false statement, Mr. Hayes.
Q. Well, we’re not — just leaving your intentions aside, the statement you made in the affidavit regarding clandestine laboratories located at the residence is false?
A. It’s not an accurate statement.
VI R. at 68-69.
Certain dangerous substances, the same being narcotics, marijuana, hallucinogens, barbiturates, amphetamines and meth-amphetamines, listed in the schedules of the Uniform Controlled Dangerous Substance Act of the State of Oklahoma;
equipment and paraphernalia used in the manufacture, distribution, administration, utilization, or consumption of said controlled dangerous substances, with the unlawful intent to possess, use and distribute said substances in violation of the laws of the State of Oklahoma including flasks, heating mantles, hoses, glassware, chemical compounds, to wit: phenyl-acetic acid, phenyl acetone, Formamide, formic acid, acetic anhydride, acetone, hydrogen chloride gas, sodium acetate, and ether;
personal property consisting of records, receipts, papers, instrumentalities, and documents related to an on-going suspected criminal enterprise in the trafficking of and conspiracy to distribute, controlled dangerous substances, including but not limited to, phone records and bills, utility bills and/or receipts, address books, records, photographs as well as undeveloped film and negatives, documents and receipts of travel, diaries, all monies, receipts, records and documents which show unusual, or suspect monetary transactions and receipts or keys to safety deposit boxes.
I R., Item 20 at 8.
The Solicitor General, however, represented that the agents’ notes were made only for the purpose of transferring the data thereon to the required receipts, and that, having served that purpose, they were destroyed by the agents in good faith and in accord with their normal practices. See 368 U.S. at 242, 82 S.Ct. at 308-309. The Court acknowledged that the notes might have contributed to the petitioner’s defense, but held that if the Solicitor General’s factual representations were true, the destruction of the notes would not “constitute an impermissible destruction of evidence nor deprive petitioner of any right.”Id. The Court remanded the case to the district court for a hearing to determine whether the Solicitor General’s representations were true, and if not, for a new trial. Id. at 244, 82 S.Ct. at 309.
Finally, we note that on the present record we cannot conclude as a matter of law that the interview notes were immaterial, or that their likely impeachment value would be insubstantial. See generally United States v. Buchanan, 891 F.2d at 1443-44.
Q. Now, during the times that you were at Tammy and Eugene’s trailer, was Tammy Sullivan there?
A. Yes, sir.
Q. Did she do anything with regard to your stay?
A. Well, she washed our clothes for us. She would cook for us. That’s about it.
Q. Did you ever discuss with her what you were doing?
A. Yeah, I mean, you know, we’d talk about how it was going. You know, if it was going all right or whether we was having any trouble, you know, that kind of stuff.
IX R. at 111. Accord id. at 113.
We went back down there to start it up, because Eugene turned on the water and it nearly blew everything up, the pressure, the air or something. And we went down there that time and walked down there.
Id.
Q. Did anything out of the ordinary happen then?
A. Well, Tammy started home, and she got to the door, or outside. And she came back and hollered for Russ.
Q. Now, what did she holler at Russ?
A. She said, “come here, daddy,” or “come to the door, daddy.” And he walked outside.
Q. All right. What did she say then?
A. I don’t know what she said out there.
Q. All right. And what is the next thing that you saw or heard happen?
A. Russ came back and he was real upset. He said that there was two cars had just went over the hill, up the road, driving real slow, and he said he felt like it might be the feds. So he said I’m going to get my gun and go see what I can find out.
X R. at 336 (emphasis added).
Second, defendants object to the admissibility of the certificates on the ground that they were hearsay and that the government did not comply with its discovery obligations under Rule 16 of the Federal Rules of Criminal Procedure. We disagree. Public records are admissible as an exception to the hearsay rule, Fed.R.Evid. 803(8), and the government may prove the absence of a record of proper registration with a certified copy of a public record, such as the one introduced here, certifying that diligent search failed to disclose evidence of the registration in question. See Fed.R. of Evid. 803(10), 902(4). Finally, we reject the defendant’s argument that the government violated Rule 16 because it furnished defense counsel with a photocopy of each certification of non-registration before they were signed by the certifying officer or affixed with the requisite seal. Although it would have been preferable to furnish defendants with copies of signed certificates bearing the requisite seal, the government’s failure to do so does not constitute a violation of Rule 16 and did not preclude their introduction into evidence.
Evelyn Rogers testified that while she was at the Russell Sullivan residence in July of 1988, Sullivan telephoned Steve Brown to come up because he thought “there might be trouble.” X R. at 341-42. Sullivan left to find out if the “feds” were there, or just someone else. X R. at 341. Sullivan was armed with a rifle and Steve with a small handgun. Id. at 341-44.
Moreover, during the raid on the laboratory site on July 20, 1988, Jimmy Wright, Eugene Fisher and Russell Sullivan were arrested in the trailer that served as the laboratory. XII R. at 1006. During that raid, Senior Agent Duncan seized three guns from the trailer. XII R. at 780.
Tammy Sullivan Fisher was not convicted on Count 4 and, therefore, there is no question before us concerning the sufficiency of the evidence on Count 4 with respect to her.
We have listened to the tape carefully and do not believe the purported language was sufficiently audible to justify the conclusion that any incriminating statement was made. Only a few words are distinct enough to hear, and those are often unclear. (For example, “weed” is easily confused with “wheat.”).
COUNT 1
(21 U.S.C. § 846)
A. Objects of the Conspiracy
Beginning on or about September 1, 1985, and continuing until on or about May 1, 1986, in the Eastern District of Oklahoma, and elsewhere, [the defendants], did wilfully and knowingly combine, conspire, confederate, and agree together and with diverse others both known and unknown to the Grand Jury to commit offenses against the United States, in violation of Title 21, United States Code, Section 846, as follows:
(1) To knowingly and intentionally manufacture amphetamine, a Schedule II, stimulant controlled substance, contrary to Title 21, United States Code, Section 841(a)(1).
(2) To knowingly and intentionally possess with intent to distribute amphetamine, a Schedule II, stimulant controlled substance, contrary to Title 21, United States Code, Section 841(a)(1).
(3) To knowingly and intentionally distribute amphetamine, a Schedule II, stimulant controlled substance, contrary to Title 21, United States Code, Section 841(a)(1).
(4) To knowingly and intentionally use firearms in the commission of the offenses listed above, in violation of Title 18, United States Code, Section 924(c).
….
COUNT 2
(21 U.S.C. § 846)
A. Objects of the Conspiracy
Beginning on or about May 1, 1988, and continuing until on or about July 20, 1988, in the Eastern District of Oklahoma, and elsewhere, [the defendants], did wilfully and knowingly combine, conspire, confederate, and agree together and with adverse others both known and unknown to the Grand Jury to commit offenses against the United States, in violation of Title 21, United States Code, Section 846, as follows:
(1) To knowingly and intentionally manufacture amphetamine, a Schedule II, stimulant controlled substance, contrary to Title 21, United States Code, Section 841(a)(1).
(2) To knowingly and intentionally possess with intent to distribute amphetamine, a Schedule II, stimulant controlled substance, contrary to Title 21, United States Code, Section 841(a)(1).
(3) To knowingly and intentionally distribute amphetamine, a Schedule II, stimulant controlled substance, contrary to Title 21, United States Code, Section 841(a)(1).
(4) To knowingly and intentionally use firearms in the commission of the offenses listed above, in violation of Title 18, United States Code, Section 924(c).
Any person who attempts or conspires to commit any offense defined in this subchapter is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt of conspiracy.
21 U.S.C. § 846 (1982)
After a weekend recess, the court requested briefing on the question by both parties. Id. vol. IV., at 35. The defendants’ brief is in fact a motion to dismiss Counts 1 and 2 of the indictment as “duplicitous.” Id. vol. I, doc. 25. (This is noteworthy because it is inconsistent with their position on appeal.) We do not, however, construe that motion as a motion to strike the offending language as surplusage, Fed.R.Crim.P. 7(d), and therefore we cannot hold that defendants have waived their improper amendment argument on appeal.
Ultimately, by minute order dated October 24, 1988, the court struck the § 924 firearms objective from Counts I and II as surplusage. Rec. vol. I, doc. 29.
[A]s soon as evidence was offered on the … gun violation in Count 1, we did approach the bench, we did object. I didn’t see it, is about all I can tell you, pretrial. I just didn’t see it. I didn’t understand it. We felt like we were led by the Government, for the reasons I’ve cited above, to believe that Count 1 and Count 2 were only drug conspiracies. We feel like — I thought, if I saw it at all prior to trial, I thought it was surplusage or scribner’s error. And I feel like … — that our position does indicate that there is good cause for relief under Rule 12(f).
IV R. at 13. The reference to Rule 12(f) is interesting because it suggests that, if given the opportunity, defense counsel would have moved to strike the offending language, thereby obviating this problem entirely.
Page 1438
“during and in relation to” a drug trafficking offense is set forth in United States v. McKinnell, 888 F.2d 669, 675
(10th Cir. 1989). There, we explained section 924(c)(1) is satisfied when: (1) the defendant has “ready access” to the firearm, and (2) the firearm “was an integral part of his criminal undertaking and its availability increased the likelihood that the criminal undertaking would succeed.” Id. at 675 (quoting United States v. Matra, 841 F.2d 837, 843 (8th Cir. 1988)).
Page 1439
utility in protection of the valuable supply [of cocaine] on hand.” LaGuardia, 774 F.2d at 321. Further, it stated the “presence and availability in light of the evident need demonstrates the use of the firearm to commit the felony.” Id.
[173] Another recent example of a case in which the evidence of firearms was sufficient to satisfy the “use” element of section 924(c)(1) is United States v. Boyd, 885 F.2d 246, 249 (5th Cir. 1989). In Boyd the court held the evidence of a shotgun in a warehouse office was sufficient for a reasonable jury to conclude section 924(c)(1) was satisfied even though the gun was broken open and could not be used until it was closed. Id. at 250. The court in Boyd noted, “[i]t is enough that the firearm was present at the drug-trafficking scene, that the weapon could have been used to protect or facilitate the operation, and that the presence of the weapon was in some way connected with the drug-trafficking.” Id. (citing Robinson, 857 F.2d at 375). Similarly, in United States v. Alvarado, 882 F.2d 645, 654 (2d Cir. 1989), cert. denied, ___ U.S. ___, 110 S.Ct. 1114, 107 L.Ed.2d 1021 (1990), the court held three guns found in various locations in Alvarado’s apartment were sufficient evidence for a reasonable jury to convict her of three counts of violating section 924(c)(1). The court also found the discovery of two other guns was “ample” evidence to uphold two further counts even though those two guns were locked in a safe in a walk-in closet Id. [174] Turning to the evidence of firearms discovered in the present case, the record shows Mary Sullivan “used” a firearm within the meaning of section 924(c)(1). McKinnell first requires the defendant have “ready access” to a firearm. 888 F.2d at 675. I am convinced there is sufficient evidence for a reasonable jury to conclude Mary Sullivan had ready access to a firearm. At trial Steve Howell testified he took his mother’s gun from his father’s Blazer, carried it into Mary Sullivan’s house, and left it there. XI at 600-01. Mary Sullivan herself testified that Howell gave this gun to her son, Steve Brown. XVII at 2086. She also testified her son placed this gun on her piano. Id. Howell testified an AR-15 with a sears clip attached was sitting on the kitchen table in Mary Sullivan’s house on Monday night, the night before she was arrested. XI at 601-03; XVII at 2087. Mary Sullivan testified the arresting officers entered while she was shelling peas in the kitchen, and they confiscated all the weapons in the house. Id. at 2088. With a gun sitting on her piano, another on the kitchen table, and all the other firearms in the house, Mary Sullivan clearly had ready access to a firearm. Her ready access to a firearm is even more certain when the position of these weapons in relation to Mary is compared with the situations discussed above. [175] McKinnell also requires the evidence be sufficient for a jury to reasonably conclude the firearm was an “integral part” of the criminal undertaking and its availability increased the likelihood that the criminal undertaking would succeed. 888 F.2d at 675. I am convinced of the reasonableness of the jury’s determination that the use of firearms contributed to the drug trafficking operation. Mary Sullivan knew the guns were present in the house. XVII at 2088. She also was home when Russell Sullivan demonstrated how the sears clip fit on the AR-15. Id.Page 1440
availability, not ownership, of firearms. See Robinson, 857 F.2d at 1010. The evidence supporting a possession of firearms charge may include a showing of indicia of ownership. A charge o using firearms, however, is fact-specific. It requires an inquiry into facts about the availability of the guns and their possible use for protection and intimidation. Ready access is clearly a factual determination, not a legal standard. We merely review the record to determine whether there is some evidence to support factual determinations already made by the jury.
[177] The jury apparently rejected the credibility of Mary Sullivan’s testimony on the gun collection point by convicting her of one count of firearm “use” under section 924(c)(1). See Meggett, 875 F.2d at 26, 29. Rather than reevaluating the credibility of Mary Sullivan’s testimony, we must consider the evidence in the light most favorable to the verdict and resolve all credibility choices in the government’s favor. Applying this standard of review, I would hold the evidence is sufficient for a jury to conclude beyond a reasonable doubt that Mary Sullivan “used” a firearm within the meaning of section 924(c)(1).32 F.4th 1259 (2022) DENVER HOMELESS OUT LOUD; Charles Davis; Michael Lamb; Sharron Meitzen; Rick…
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