United States v. Beach , 196 F. App'x 205 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5234
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
EDWARD JOHN BEACH,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (CR-02-260)
Submitted: August 21, 2006 Decided: August 30, 2006
Before WIDENER, WILLIAMS, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Aaron E. Michel, Charlotte, North Carolina, for Appellant.
Gretchen C. F. Shappert, United States Attorney, Kimlani S. Murray,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Edward John Beach appeals his convictions for (1) conspiracy
to manufacture methamphetamine, (2) conspiracy to possess with
intent to distribute methamphetamine, and (3) the manufacture of
methamphetamine in violation of 21 U.S.C.A. §§ 841 and 846 (West
1999). Beach argues that several of the district court’s
evidentiary rulings undermine confidence in the jury’s verdict and
require us to vacate his conviction. Beach also argues that the
district court’s constructive amendment of the grand jury
indictment requires us to vacate his conviction. For the following
reasons, we affirm.
I.
On November 15, 2002, the Charlotte-Mecklenburg Police
Department responded to a domestic disturbance at 10486 Moores
Chapel Road, Charlotte, North Carolina. Upon their arrival at the
scene, Margaret Alice Schaal informed the police that Beach had hit
her and that Beach operated a methamphetamine lab inside their
home. After observing the methamphetamine lab, the officers exited
the home and called for additional assistance. Due to the
explosive and dangerous nature of methamphetamine production, Agent
Hetzel, a narcotics officer specializing in clandestine
laboratories, was called to the scene. Agent Hetzel donned
protective gear and secured the home, so that chemists could enter
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it and assess the lab. Chemists with the North Carolina State
Bureau of Investigation confirmed that the lab was indeed a
methamphetamine lab.
Schaal was arrested and cooperated with the police. She
informed the police that she helped Beach make methamphetamine and
that Jason Lewis also assisted in the production and distribution
of the methamphetamine. Beach was arrested on April 25, 2003 and
subsequently charged with the two offenses forming the basis of
this appeal. Schaal and Lewis were also indicted for the
methamphetamine conspiracy and Schaal, like Beach, was also
indicted on the manufacturing charge. Lewis and Schaal pleaded
guilty and testified at trial against Beach. A jury convicted
Beach on both counts and the district court sentenced Beach to 188
months’ imprisonment, a sentence below the recommended sentencing
guidelines range. Beach timely appealed his conviction only, and
we have jurisdiction to review his conviction pursuant to 28
U.S.C.A. § 1291 (West 1993).
II.
We first address Beach’s challenges to the district court’s
evidentiary rulings. We review for abuse of discretion a district
court’s evidentiary rulings. See United States v. Smith, 451 F.3d
209, 217 (4th Cir. 2006).
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Beach first contends that the district court erred by allowing
the officer who responded to the domestic disturbance call to
testify that he was called to the Schaal/Beach residence on
November 15, 2002 for domestic disturbance, arguing that such
statements were hearsay evidence and were highly prejudicial. We
find no error in the district court’s admission of this evidence.
The evidence was not hearsay evidence because it was not offered
for the truth of the matter asserted, but instead was offered to
provide relevant background evidence as to why the officers visited
the Schaal/Beach house on that day. See United States v. Love, 767
F.2d 1052, 1063 (4th Cir. 1985). Furthermore, given the wide
discretion provided to district courts, we find no error in the
district court’s conclusion that the probative value, as it
provided an explanation for the officers’ presence at the
Schaal/Beach home, was not substantially outweighed by any
prejudice to Beach. See Fed. R. Evid. 403 (“Although relevant,
evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury.”)
Beach next contends that the district court erred by allowing
Agent Hetzel to testify to the dangers presented by a
methamphetamine lab and by showing the jury pictures of the agents
in “moon-walker” protective gear. (Appellant’s Br. at 48.) Beach
contends that such evidence was irrelevant to the charges and
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highly prejudicial. We find no error in the district court’s
admission of this evidence. To be admissible as background
evidence, the testimony and pictures must satisfy the requirement
of Rule 401 of the Federal Rules of Evidence that the evidence
“make the existence of any fact that is of consequence . . . more
probable or less probable.” Fed. R. Evid. 401. Agent Hetzel’s
testimony and the pictures demonstrated that a methamphetamine lab
existed in the Schaal/Beach home, thus making it more probable that
Beach had violated § 841. We also hold that the probative value of
the pictures and Agent Hetzel’s testimony outweigh any prejudice
suffered by Beach. See United States v. Grimmond, 137 F.3d 823,
831 (4th Cir. 1998)(upholding the admission of evidence of a
shooting where defendant was charged with drug and weapons
possession because the shootings tended to suggest that defendant
had a weapon, thus establishing an element of the crime and
outweighing any prejudice suffered).
Beach’s third argument is that the district court erred in
allowing Schaal to testify that Beach had been “captured,” (J.A. at
370), because “[t]here was no relevance to [this testimony] and it
served only to convey the idea that [Beach] is not only presumed
guilty but is dangerous.” (Appellant’s Br. at 49.) Even assuming
for argument’s sake that such evidence is irrelevant, the admission
of such evidence does not constitute reversible error because the
testimony in no way implies that Beach was dangerous.
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Fourth, Beach alleges that the prosecution engaged in improper
bolstering of Schaal’s testimony during closing argument and that
the district court erred by admitting evidence that the prosecution
had not made any promises of leniency to Schaal in exchange for her
testimony. We disagree. A prosecutor engages in improper
vouching when he indicates his personal belief in the witness or
indicates to the jury that he can guarantee the truthfulness of a
witness. See United States v. Collins, 415 F.3d 304, 307-8 (4th
Cir. 2005). Having reviewed the record, we find that the
prosecutor did not vouch for Schaal’s credibility. For example,
the prosecutor merely told the jury that just because Schaal had
entered into a plea agreement did not “disqualify [her] from
testifying,” but that “it’s just up to you to listen to [her] and
decide for yourself.” (J.A. at 456.) Furthermore, the district
court did not err by allowing the prosecution to question Schaal as
to whether she had been offered anything in return for her
testimony. See United States v. Henderson, 717 F.2d 135, 138 (4th
Cir. 1983)(holding that the “district court did not abuse its
discretion in permitting the government to introduce the terms of
[a] plea bargain during the government’s case in chief”).
Fifth, Beach contends that his due process rights were
violated because the police lost some of the seized evidence and
the prosecution then introduced photographs of the missing
evidence. Beach also argues that the introduction of the
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photographs violated his Sixth Amendment confrontation rights as
delineated under Crawford v. Washington, 541 U.S. 36 (2004). In
Arizona v. Youngblood, 488 U.S. 51 (1988), the Supreme Court held
that “where a defendant can show bad faith, the failure to preserve
potentially useful evidence constitutes a violation of the Due
Process Clause.” Lovitt v. True, 403 F.3d 171, 186 (4th Cir.
2005)(internal quotation marks omitted). Because Beach cannot
demonstrate any bad faith on the part of the government, his due
process claim fails. In addition, in Crawford the Supreme Court
held that “[the Confrontation Clause] bars admission of testimonial
statements of a witness who did not appear at trial unless he was
unavailable to testify, and the defendant had had a prior
opportunity for cross-examination.” Davis v. Washington, 126 S.
Ct. 2266, 2273 (2006)(internal quotation marks omitted). Beach has
failed to demonstrate how photographs of seized evidence could
conceivably constitute the “testimonial” statements that Crawford
bars.
In Beach’s final evidentiary argument, he contends that the
district court erred by preventing him from cross-examining Schaal
about her malingering at a mental institution and her marijuana
usage. Even assuming for argument’s sake that the district court
should have permitted Beach to use the medical report produced from
Schaal’s institutionalization, any such error would be harmless.
Although the district court refused to allow Beach to ask Schaal
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about the contents of the report, the district court allowed Beach
to ask Schaal whether she was initially deemed incompetent to stand
trial, a question she answered in the affirmative, and whether she
was malingering while at the institution, a question she answered
in the negative. While the report would have allowed Beach to
impeach Schaal on this issue, the impeachment would have been on an
issue that was so tangential to the prosecution’s case that it
would have had little effect on Schaal’s overall credibility. The
same analysis applies to the district court’s ruling prohibiting
Beach from asking Schaal whether she tested positive for marijuana
while on pre-trial release and whether she had a prior misdemeanor
conviction for marijuana. At trial, Beach asked Schaal about her
marijuana usage and she replied, “I smoked it all the time.” (J.A.
at 384.) Schaal also testified that she used some of the
methamphetamine made by Beach. Again, any impeachment value gained
from eliciting a statement from Schaal that she used marijuana
while on pre-trial release or had a prior misdemeanor conviction
would be only cumulative considering her testimony regarding her
drug usage.
Beach also contends that “[e]ven if each of the particular
errors above described was harmless or non-reversible, the
cumulative effect requires a new trial.” (Appellant’s Br. at 58.)
We disagree. The evidence against Beach was overwhelming. It was
undisputed that Beach resided where the methamphetamine lab was
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discovered. Furthermore, Schaal and Lewis testified that Beach was
engaged in the manufacture of methamphetamine. Lewis testified in
detail how he met Beach at work and how Beach agreed to purchase
ephedrine packages for the manufacture of methamphetamine to earn
some extra money. In fact, Lewis testified that Beach provided him
fifty packages a week. Lewis further testified that he and Beach
together cooked the methamphetamine on a few occasions. Schaal
testified consistent with Lewis. In summary, we find no reversible
error in the district court’s evidentiary rulings.
III.
We next address Beach’s argument that the expansion of the
charges beyond what the grand jury charged constituted per se
reversible error. We review de novo an allegation that the
district court improperly permitted a constructive amendment to a
grand jury indictment. United States v. Bolden, 325 F.3d 471, 493
(4th Cir. 2003).
“‘A constructive amendment to an indictment occurs when either
the government, [the court], or both, broadens the possible bases
for conviction beyond those presented by the grand jury.’” Id.(quoting United States v. Floresca, 38 F.3d 706, 710 (4th Cir.
1994)). The original indictment provided in Count One that Beach
was involved in a conspiracy involving at least 500 grams of a
mixture or substance containing a detectable amount of
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methamphetamine. In addition, and presumably because the
government was concerned about the affect of United States v.
Blakely, 542 U.S. 296 (2005), on the constitutionality of the
United States Sentencing Guidelines, Count One further stated that
the amount reasonably foreseeable to Beach was at least 200 grams,
but less than 350 grams. At trial, the district court granted the
prosecution’s motion to redact the amount of methamphetamine
reasonably foreseeable to Beach because, after United States v.
Booker, 543 U.S. 220 (2005), it became clear that the Sixth
Amendment did not require that amount to be proven to a jury.
Beach alleges that the indictment was broadened when the district
court granted the prosecution’s motion to redact. We find that
the district court did not broaden the indictment. The jury found
that the conspiracy involved at least 500 grams of methamphetamine,
but the jury did not make a specific finding as to the amount of
methamphetamine reasonably foreseeable to Beach. Thus, the jury’s
verdict and the grand jury indictment are consistent with each
other. Although the indictment was amended, it did not broaden the
basis for conviction.
IV.
In summary, we affirm Beach’s conviction because the district
court did not commit any reversible errors in its evidentiary
rulings, nor did the district court improperly broaden the charges
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beyond the grand jury indictment. We dispense with oral argument
because the facts and legal contentions are adequately presented in
the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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