United States v. Thomas S. Crossland ( 2002 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 02-1385
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Western
* District of Arkansas.
Thomas Scott Crossland, *
*
Appellant. *
___________
Submitted: June 11, 2002
Filed: August 15, 2002
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Before RILEY, BEAM, and MELLOY, Circuit Judges.
___________
BEAM, Circuit Judge.
Thomas Crossland was convicted by a jury for conspiracy to manufacture
methamphetamine and possession of a listed chemical, iodine, with cause to believe
it would be used to manufacture methamphetamine. The district court1 sentenced him
to 240 months' imprisonment for the conspiracy conviction and 120 months on the
1
The Honorable Robert T. Dawson, United States District Judge for the
Western District of Arkansas.
possession conviction, to run concurrently. Crossland appeals from the district
court's pretrial orders denying a motion to suppress, a renewed motion to suppress
and a motion to dismiss. He also appeals his jury conviction, on the basis of
insufficient evidence. Finally, he appeals his sentence, arguing that it is excessive.
For the reasons set forth below, we affirm.
I. BACKGROUND
On October 13, 1998, Crossland ordered 220 pounds of iodine from Patricia
Roderstorf, an international sales representative for GFS Chemical. He stated that he
was doing business on behalf of Innovative Systems and GSI Incorporated. The
credit application he provided to GFS reported that Innovative Systems was in the
business of "pyrotechnics/fireworks." On October 23, 1998, he ordered an additional
220 pounds of iodine from Andrew Abdul, president of Dawn Scientific. He
requested that the iodine from both companies be delivered to "Kerr-McGee
Corporation Sequoyah Fuels Atomic Fuels Division, Fort Smith, Arkansas."
Crossland told Roderstorf that the iodine would be used by Kerr-McGee to clean out
its radioactive tanks. Roderstorf attempted to locate Kerr-McGee in Fort Smith, but
discovered that no Sequoyah Fuels Facility existed in that area. Knowing that iodine
was on the DEA "watch list," Roderstorf contacted the DEA and provided agents with
information about Crossland's order. Abdul also thought Crossland's order was
suspicious, and when he contacted Kerr-McGee's headquarters, he was informed that
the company had no properties in Arkansas. Abdul contacted the DEA and provided
Agent Kelley with information regarding Crossland's order. Kelley attempted to
locate Kerr-McGee Sequoyah Fuels, and discovered that no such business existed.
Kelley also checked to see if Crossland had any prior drug offenses and found none.
The iodine from both companies was scheduled to arrive at Overnite
Transportation in Muskogee, Oklahoma, on November 5, 1998, and the DEA
dispatched a surveillance team to monitor its arrival. On November 5, the iodine
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arrived and Crossland retrieved it and drove to a self-storage unit. Agent Kelley and
other state and local officers followed Crossland to the storage unit. When they
arrived, Crossland was parked in front of his unit and was unloading the iodine.
Kelley testified that as he approached the storage unit he could see that inside there
was a barrel marked "Red Phosphorous 110 Pounds." Kelley then identified himself,
told Crossland he was under investigation and read him his Miranda rights.
Crossland consented to a search of the storage unit. In the unit, the officers
found the barrel, which was largely empty, red powder on the floor, a set of scales
and a pair of gloves. Oklahoma law prohibited possession of red phosphorous
without a permit. Oklahoma authorities seized the items in the storage unit and
placed Crossland under arrest for possession of red phosphorous. That charge was
eventually dismissed. Crossland also signed a consent to search his residence. When
Kelley searched the residence, he found $29,000 in cash, along with documents
showing that Crossland had ordered iodine and red phosphorous.
After Crossland was taken to the Muskogee County Jail, an officer advised him
of his Miranda rights and asked him about the iodine and red phosphorous. Crossland
told the officer that the chemicals were used to turn fireworks red. He also said that
the chemicals were used to grow pecan trees. Unable to convince the officer that he
was telling the truth, Crossland eventually relented and said, "wait, wait just a minute.
I'll tell you the truth about it." The officer waited for Kelley and FBI Agent Caudle
to arrive. When Kelley arrived, he again advised Crossland of his Miranda rights.
Crossland told Kelley that the chemicals were for Roger Hughes who was using them
to make methamphetamine. He said that he made a four hundred dollar profit per 110
pound barrel. Crossland then said, "I pieced it together and figured he was using it
or selling it to make crank. It didn't take a rocket scientist to figure out what they
were using it for. I sell fireworks but the 1700 pounds of red phosphorous were not
used to make fireworks . . . I guess I'm guilty for what I did but I wasn't the one
making the dope."
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A grand jury indicted Crossland for possession of iodine, a listed chemical,
having reasonable cause to believe it would be used to manufacture
methamphetamine. Several weeks later, the grand jury returned a superseding
indictment adding a second count for conspiracy to manufacture methamphetamine.
Crossland filed a motion to suppress his statements and the evidence seized. A
magistrate judge conducted a hearing and denied the motion to suppress, which action
was adopted by the district court. After Crossland failed to appear at his trial and was
apprehended in the Philippines, he filed a renewed motion to suppress based on this
court's ruling in United States v. Reinholz, 245 F.3d 765 (8th Cir. 2001). He also
filed a motion to dismiss count one, alleging that iodine was not a listed chemical.
The district court denied both motions. Crossland appeals all three of the district
court's pretrial orders. A trial was conducted and the jury found Crossland guilty on
both counts. He appeals the verdict, arguing there was insufficient evidence. The
district court sentenced Crossland to 240 months' imprisonment for the conspiracy
conviction and 120 months on the possession conviction, to run concurrently. He
appeals his sentence, arguing that it is excessive.
II. DISCUSSION
A. Motions to Suppress
Crossland argues that a suspect's actions in ordering and purchasing iodine,
standing alone, do not provide sufficient probable cause to arrest the suspect.
Reinholz, 245 F.3d at 778-79. Under Reinholz, he argues that his arrest was unlawful
because it was not based on probable cause, and that his statements and the evidence
seized from his home should be suppressed. We review a district court's findings of
fact for clear error and determinations of reasonable suspicion and probable cause de
novo. United States v. Beck, 140 F.3d 1129, 1133 (8th Cir. 1998).
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Crossland made a variety of arguments in his initial motion to suppress,
including : (1) the barrel inside his storage unit marked red phosphorous was not in
plain view; (2) he was forced to give his consent to search the storage unit; (3) he did
not know he signed a consent to search his residence; and (4) he was coerced into
making incriminating statements at the county jail. In his renewed motion to
suppress, Crossland argues that the officers did not have probable cause to arrest him
because Reinholz held that ordering and purchasing iodine, standing alone, do not
provide sufficient probable cause to make an arrest. After carefully reviewing both
his opening and reply briefs, it appears that Crossland only advances his Reinholz
argument in this appeal. Out of an abundance of caution, however, we will assume
Crossland intended to appeal all of his non-Reinholz arguments as well.
After carefully reviewing the magistrate judge's report and recommendation of
the initial motion to suppress, we are persuaded that the barrel of red phosphorous
was in plain view, Crossland voluntary consented to the search of his storage unit, he
knowingly and voluntarily consented to a search of his residence, and he was not
coerced into making the incriminating statements at the county jail. See 8th Cir. R.
47B. We next turn to Crossland's Reinholz argument.
The Fourth Amendment protects "[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures," and
it requires probable cause for lawful searches and seizures. U.S. Const. amend. IV;
see also Illinois v. Gates, 462 U.S. 213, 230, 235 (1983). "We assess probable cause
from the viewpoint of a reasonably prudent police officer, acting in the circumstances
of the particular case. We remain mindful that probable cause is a practical, factual,
and nontechnical concept, dealing with probabilities." Reinholz, 245 F.3d at 776
(internal citations omitted). Furthermore, "[p]robable cause for an arrest exists when
the totality of circumstances demonstrates that the arresting officer personally knows
or has been reliably informed of sufficient facts to warrant a belief that a crime has
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been committed and that the person to be arrested committed it." Id. at 778 (citing
Kuehl v. Burtis, 173 F.3d 646, 650 (8th Cir. 1999)).
In Reinholz, the court held that the police did not have probable cause to arrest
a suspect merely because they had been reliably informed that the suspect had legally
purchased iodine, even though a trash search outside the suspect's home revealed drug
paraphernalia. Reinholz, 245 F.3d at 776. The court reasoned that the police did not
have probable cause because the suspect did not have a drug record, police did not
observe him engage in any illegal activity, there was no corroborating police
investigation, and surveillance failed to reveal any criminal activity connected to the
suspect's house. Id. Although on the surface many of the facts here appear
comparable to Reinholz, the cases are, in fact, very different. Reinholz held that the
arrest was illegal, in part, because the officers did not advise the suspect of his
Miranda rights when they arrested him. Id. Here, on the other hand, Crossland
received the Miranda warning the moment Kelley approached him at the storage unit.
Furthermore, the officers in this case conducted an independent investigation to
corroborate the information supplied by the chemical companies. The officers
discovered that Crossland was fabricating the existence of companies and lied about
what the chemicals would be used for. In addition, the officers personally observed
Crossland load iodine onto a truck and transport it to his storage unit, a different
destination than that provided to the chemical suppliers. In Reinholz, on the other
hand, all the police had was a tip that the suspect had legally purchased iodine. Also,
before the arrest, the officers here obtained consent to search the storage unit and
discovered a red phosphorous barrel, scales, gloves, and red powder covering the
floor. From the perspective of experienced DEA agents, red phosphorous and iodine
are commonly known to be used in the manufacturing of methamphetamine.
In sum, the evidence was suppressed in Reinholz because a non-Mirandized
suspect gave statements to officers during a custodial interrogation. The questioning
occurred prior to the officers finding any iodine in the possession or control of the
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defendant. The police failed to conduct an independent investigation to corroborate
the tip that the suspect had in fact purchased iodine. Here, on the other hand,
Crossland received the Miranda warning immediately, the officers observed iodine
in his possession, and the police investigated the tips from the chemical companies
and discovered that Crossland's proffered reasons for purchasing iodine were
fabricated. Furthermore, the agents found red phosphorous and scales in the same
unit where the iodine was to be stored. Taken together, we think a reasonable officer
would conclude that there were sufficient facts to believe that Crossland committed
a crime. Therefore, the officers had probable cause and the denials of the motions to
suppress were proper.
B. Motion to Dismiss
Crossland contends that count two of the indictment is constitutionally
insufficient because at the time of his offense iodine was not a listed chemical agent.
He argues that at the time of his offense the Attorney General had yet to designate
iodine as a list II chemical. We review federal constitutional questions de novo.
United States v. Johnson, 56 F.3d 947, 953 (8th Cir. 1995). Crossland's argument is
without merit. Although the Attorney General had not yet specified iodine as a list
II chemical by regulation at the time of Crossland's indictment, Section 204 of the
Comprehensive Methamphetamine Control Act of 1996 specifically designated iodine
as a list II chemical. See 21 U.S.C. § 802(35)(I). Thus, iodine was a list II chemical
by operation of law and the lack of an additional regulation by the Attorney General
is immaterial.
C. Sufficiency of the Evidence
Crossland contends that there was insufficient evidence of his involvement
with a conspiracy, because at the time he purchased the iodine it was legal to
purchase and possess any quantity of iodine. He also points out that no
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methamphetamine was ever seized in connection with his case. In sum, Crossland
argues that there was no evidence that he knew of, or participated in, any conspiracy
to manufacture methamphetamine.
"The standard of review of an appeal concerning sufficiency of the evidence
is very strict, and the verdict of the jury should not be overturned lightly." United
States v. Burks, 934 F.2d 148, 151 (8th Cir. 1991). "In reviewing the sufficiency of
the evidence on appeal, the court views the evidence in the light most favorable to the
government, resolving evidentiary conflicts in favor of the government, and accepting
all reasonable inferences drawn from the evidence that support the jury's verdict."
United States v. Erdman, 953 F.2d 387, 389 (8th Cir. 1992). We will reverse only if
no reasonable jury could have found the accused guilty beyond a reasonable doubt.
United States v. Harmon, 194 F.3d 890, 892 (8th Cir. 1999).
In order to convict Crossland of conspiracy to manufacture methamphetamine,
the government needed to prove that (1) a conspiracy existed; (2) Crossland knew of
the conspiracy; and (3) he knowingly became a part of the conspiracy. United States
v. Davidson, 195 F.3d 402, 406 (8th Cir. 1999). To establish the existence of a
conspiracy the government needed to prove that there was an agreement among
individuals to achieve an illegal purpose. United States v. Grego, 724 F.2d 701, 704
(8th Cir. 1984). Circumstantial evidence alone can prove the existence of such
agreement. United States v. Townsley, 843 F.2d 1070, 1087 (8th Cir. 1988). An
express agreement is unnecessary–a conspiracy may consist of merely a tacit
understanding. United States v. Pintar, 630 F.2d 1270, 1275 (8th Cir. 1980). To find
that an accused participated in a conspiracy, the government must show some element
of cooperation beyond mere knowledge of the existence of the conspiracy. United
States v. Duckworth, 945 F.2d 1052, 1053 (8th Cir. 1991).
Viewing the evidence in a light most favorable to the government, we think a
reasonable jury could find that Crossland was guilty of both counts in the superseding
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indictment. A forensic chemist testified that red phosphorous, iodine and ephedrine
can be combined with other items available from grocery stores to make
methamphetamine. The record shows that in addition to the iodine shipment,
Crossland ordered and received a total of 1,964 pounds of red phosphorous from one
distributor alone. He also attempted to order 14,000 pounds of red phosphorous
before the prospective distributor was contacted by the police. He told these
distributors that he wanted the red phosphorous to make fireworks and road flares.
While Crossland claimed at various times that the chemicals he possessed would be
used to grow pecan trees, put color in fireworks, and make road flares, the jury heard
evidence that red phosphorous had no application for growing pecan trees and that
iodine was toxic and would kill the trees. Evidence was also presented that iodine is
not used to manufacture fireworks. Furthermore, an expert in pyrotechnics testified
that Crossland could have made 35 million road flares with the amount of red
phosphorous he purchased. The jury heard other testimony debunking Crossland's
proffered explanations for the chemicals. For instance, Kerr-McGee did not have a
Sequoyah Fuels facility. In fact, Kerr-McGee did not own any property in Arkansas.
Also, there was testimony that iodine is not used to decontaminate nuclear facilities.
In sum, it is reasonable to assume that the jury rejected all of Crossland's explanations
for legitimate uses of the chemicals, thus supporting the inference that Crossland
knew exactly what the chemicals were in fact used to produce.
Crossland's own statements essentially concede that he was involved in a
conspiracy to manufacture methamphetamine. He said he assumed Roger Hughes
was making "crank" with the chemicals he was providing. He said it "didn't take a
rocket scientist" to figure it out. Agent Kelley subsequently found Roger Hughes in
an Oklahoma jail charged with methamphetamine violations. Crossland also
acknowledged that he knew he should not be supplying methamphetamine producers
with precursor chemicals when he said "I guess I'm guilty for what I did, but I wasn't
the one making the dope." Crossland even acknowledged that he knew the location
of one of the methamphetamine labs where his chemicals went when he told Kelley,
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"Jimmy said that the dope lab was in Broken Arrow, Oklahoma." In addition, the jury
heard from Crossland's cellmate, who testified that Crossland told him that he had
previously made methamphetamine but could make more money by selling the
chemicals to other people who made the drug. It is clear from reviewing the record
that a reasonable jury could conclude that Crossland was a supplier and broker of
chemicals used to make methamphetamine and that he was guilty of conspiracy and
possession of iodine having reasonable cause to believe it would be used to
manufacture methamphetamine. See, e.g., United States v. Montanye, 962 F.2d 1332,
1343 (8th Cir. 1992) (subsequent history omitted)2 (supplier who sold laboratory
glassware, knowing with certainty that it would be used in illegal drug manufacturing
conspiracy, was not entitled to favorable aiding and abetting instruction).
D. Sentencing Issue
Finally, Crossland claims that his sentence was grossly disproportionate to his
crime, and that it constituted cruel and unusual punishment in violation of the Eighth
Amendment. We review a district court's finding of fact at sentencing for clear error.
United States v. Russell, 234 F.3d 404, 408 (8th Cir. 2000).
The district court determined that the sentencing guidelines did not apply to
Crossland on the conspiracy and iodine possession charges because there were no
guidelines in existence for those at the time of his offense. As a result, the district
court turned to the conspiracy statute's sentencing range and found that the statutory
maximum sentence for drug conspiracy was twenty years. 21 U.S.C. § 841(a)(1).
The statutory maximum for possession of iodine with cause to believe it would be
2
This opinion was subsequently vacated and a suggestion for rehearing en banc
was granted. 962 F.2d at 1349. However, the en banc court specifically approved of
the portion of the prior panel opinion containing the discussion of the aiding and
abetting instruction. See United States v. Montanye, 996 F.2d 190, 194 (8th Cir.
1993) (en banc).
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used to manufacture methamphetamine was ten years. 21 U.S.C. § 841(d)(2). The
district court sentenced Crossland to the statutory maximum on both counts, but
elected to have the sentences run concurrently. The district court based its sentence,
in part, on the testimony of a chemist who reported that approximately 146 pounds
of eighty percent pure methamphetamine could have been manufactured from the 440
pounds of iodine purchased by Crossland. The district court concluded that, in order
to reflect the seriousness of the offense, the defendant should be sentenced to the
statutory maximum.3
Crossland advances the unremarkable argument that there were no drugs
manufactured from the iodine the police actually seized. While obvious, that fact is
totally irrelevant. The fact that the police prevented the distribution of the iodine to
methamphetamine manufacturers does not diminish Crossland's culpability for his
offenses. In sum, the district court did not err in sentencing Crossland to the statutory
maximum.
III. CONCLUSION
For the reasons discussed, we affirm the pretrial orders of the district court, the
jury verdict and the sentence.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
3
If the sentencing guidelines that are now in effect had governed Crossland's
sentence, it appears his guideline range would have been between 324 and 405
months' imprisonment.
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