United States v. Bob Castleman , 795 F.3d 904 ( 2015 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 14-3184
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Bob Sam Castleman
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
____________
Submitted: April 17, 2015
Filed: August 5, 2015
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Before MURPHY, COLLOTON, and KELLY, Circuit Judges.
____________
MURPHY, Circuit Judge.
Bob Sam Castleman was charged with conspiracy to manufacture
methamphetamine, maintaining drug premises, and conspiracy to possess chemicals
and equipment used to make methamphetamine. Some evidence supporting these
charges came from a traffic stop in Walnut Ridge, Arkansas and a later search of open
fields on Castleman's property. The district court1 denied motions to suppress the
evidence obtained during these searches. At trial the government also introduced
evidence that he had murdered a coconspirator to prevent him from testifying. This
testimony was offered over Castleman's objection as evidence of his consciousness
of guilt. The jury returned a guilty verdict on all counts. At sentencing the district
court found that Castleman had murdered the coconspirator, applied the higher base
offense level for first degree murder under U.S.S.G. §§ 2A1.1 and 2D1.1(d)(1), and
sentenced him to 40 years imprisonment. Castleman appeals his conviction and
sentence, and we affirm.
I.
A.
On April 11, 2011, while Tracy Moore was working at the Farm Service store
in Walnut Ridge, Arkansas, he saw a man who had purchased Coleman fuel enter a
parked pickup truck. Then he observed a woman leave the same truck, come into the
store, and purchase vinyl tubing. Moore was aware that the items purchased could
be used to produce methamphetamine and thought the customers' behavior was
suspicious so he called the police chief of Hoxie, a neighboring city. He contacted
the police in Hoxie rather than Walnut Ridge because in his prior experience they
responded more quickly to such calls. Moore provided a description of the pickup
truck, its occupants, and the items they had purchased.
Hoxie Police Chief Glen Smith responded to the call and saw a truck matching
Moore's description pull out of the Farm Service parking lot. Smith followed the
truck and stopped it after he observed it cross over the center line. The stop occurred
1
The Honorable J. Leon Holmes, United States District Judge for the Eastern
District of Arkansas.
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in Walnut Ridge, and Smith called the Walnut Ridge police to advise them of the
situation as he was making the stop. Walnut Ridge Detective David Burnside arrived
at the scene almost immediately.
Smith approached the driver side of the truck, asked for identification, and
received driver licenses from both occupants. Bob Castleman was the driver, and
Rebecca Spray was the passenger. While requesting identification Smith noticed
tubing between the two front seats. When he ran the identification information, Smith
discovered that Spray was on probation. He contacted her probation officer who
advised him that Spray was subject to search by any law enforcement officer.
Smith then asked Spray to get out of the truck, advised her of her rights, and
told her that he had received a report that she bought methamphetamine supplies at
the Farm Service store. He saw pills laying on the floor of the truck. Spray stated
that she and Castleman were buying "stuff" including fuel and pills to take to
Castleman's house for someone else. Spray and Castleman were arrested. A search
of the truck found a can of Coleman fuel, four boxes of pseudoephedrine pills, tubing,
and a box of plastic bags.
B.
Chief Smith reported information about the traffic stop and arrest of Castleman
and Spray to Sheriff Gary Tribble of Randolph County, Arkansas. Based primarily
on this information, Sheriff Tribble requested and received a search warrant for
Castleman's residence in Imboden, Arkansas. Sheriff Tribble and several other law
enforcement officers executed the warrant on April 12, 2011.
Castleman's residence was located on 262 acres of land which was enclosed by
a barbed wire fence on three sides, bordered by a river on the fourth, and posted with
signs on the boundaries. A locked gate was at the entrance to the property, and law
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enforcement officers used bolt cutters to gain access for the search. Bob Castleman's
son, Robert Jerrod Castleman ("Jerrod"), was present at the house when officers
arrived. Inside the house officers found two lithium batteries, some marijuana, and
digital scales. Two Coleman fuel cans and one starter fluid can were found on the
rear porch.
While other officers searched the house, investigators Michael King and Willie
Kimble followed a driveway that led uphill and away from the residence. Over the
crest of the hill in an area not visible from the house, they found closed garbage bags
in a trailer. They also noticed a large plastic tarp near some hay bales, and without
moving the tarp they could see an air tank and a gray plastic tote under it. The
officers opened the trash bags and found a Coleman fuel can and a lacquer thinner
can. They then moved the tarp and opened the tote. Inside was plastic and copper
tubing, a white spoon, a funnel, pipe and valve fittings, a siphon pump, two plastic
pitchers, rubber gloves, drain cleaner, and a pill crusher with residue on it. They also
found an empty bag of salt pellets near the tote. King took photos of these items.
Subsequent forensic testing detected methamphetamine residue on the digital scales
found in the residence and pseudoephedrine residue on the pill crusher found in the
tote. The copper tubing found in the tote had green corrosion consistent with
exposure to anhydrous ammonia.
C.
A grand jury indicted Castleman on charges of conspiracy to manufacture
methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and 846;
maintaining a drug premises in violation of 21 U.S.C. §§ 856(a)(2) and 846; and
conspiracy to possess chemicals and equipment used to manufacture
methamphetamine in violation of 21 U.S.C. § 843(a)(6), 843(d), and 846. Other
charged members of the conspiracy to manufacture methamphetamine included
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Jerrod, Spray, and Travis Perkins. Spray and Castleman were the only charged
members of the conspiracy to possess methamphetamine precursors.
Castleman moved to suppress evidence obtained from the traffic stop and from
the search of the trash bags and tote. The district court denied these motions.
Castleman was the only defendant who proceeded to trial. Travis Perkins was killed
shortly before he was scheduled to enter a guilty plea on April 18, 2013. Jerrod
pleaded guilty on the day trial began, December 12, 2013. The other coconspirators
had already pleaded guilty and agreed to cooperate with the government.
The evidence presented by the government at trial showed that Castleman
allowed Jerrod and Perkins to cook methamphetamine on his property in Imboden,
Arkansas, that he received methamphetamine for his own use in return, and that he
sometimes purchased precursors for them. Evidence and testimony about the traffic
stop and search of Castleman's property was also presented, and a forensic chemist
testified that methamphetamine could be produced using materials such as lithium
batteries, pseudoephedrine pills, anhydrous ammonia, tubing, air tanks, plastic
containers, salt, and camp fuel. Records from a state database showed that Castleman
had purchased pseudoephedrine pills 14 times in the two years preceding his arrest.
Several witnesses who had agreed to cooperate with the government testified
about their visits to the Castleman farm. They testified that they visited the farm
between 2008 and 2011, sometimes bringing pseudoephedrine pills with them to give
to Jerrod or Perkins for the purpose of manufacturing methamphetamine. Jerrod or
Perkins would cook methamphetamine outside of the house and bring the finished
product into the house on a coffee filter to dry. The filter would be placed on the
kitchen table, sometimes in Castleman's presence. Castleman and others at the farm
would then smoke the methamphetamine. Sometimes Perkins would make enough
so that they could all smoke some, he could leave some with Castleman, and he could
take some away himself. One witness also testified that he, Perkins, Jerrod, and
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Castleman talked as a group about purchasing fertilizer. While nobody had stated
directly that the fertilizer was for manufacturing methamphetamine, he believed that
"everybody knew" that was its purpose.
On the morning of the third day of trial, the government announced that it
intended to call Jerrod as a witness and that it had recently learned Jerrod would
testify that Castleman had confessed to killing Perkins.2 The government stated that
it wished to offer testimony about this confession as evidence of Castleman's
consciousness of guilt of the charged offenses and that it believed a limiting
instruction would be appropriate. Castleman objected to the introduction of this
evidence and the district court granted the defense a 24 hour continuance to prepare
its response.3 After hearing argument the court ruled that it would allow the
testimony for the limited purpose identified by the government.
Jerrod testified that when his father mentioned that he had been "ripped off"
and had gotten "bad stuff," which Jerrod understood to be methamphetamine, Jerrod
"hinted that [he] might be able to fix the problem." Jerrod knew that his friend
Perkins "was cooking meth at the time and he sometimes needed a place to go."
Perkins and Jerrod began manufacturing methamphetamine on Castleman's property;
according to Jerrod, his father "basically told me he didn't want to know nothing
about it." Jerrod confirmed that he and Perkins would receive pseudoephedrine pills
from visitors to the property, manufacture methamphetamine on the property, bring
2
The government had learned on the first day of trial that Jerrod was willing to
testify, but it explained that before deciding to offer him as a witness it wanted to
meet with him to assess his credibility, investigate whether his evidence was
corroborated, and assess any risks to his safety as an incarcerated cooperating
witness.
3
Castleman initially moved for a longer continuance in order to investigate the
alleged murder. The district court denied this request, a ruling which Castleman did
not appeal. The length of the continuance granted is therefore not now at issue.
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the methamphetamine on a coffee filter into the house to dry, and then smoke some
of it with whomever was present. Castleman was sometimes present when they
brought the coffee filter into the house and when they smoked together. Jerrod also
testified that Castleman brought him pseudoephedrine pills and that Castleman was
concerned "for appearance's sake" about the buggy of fertilizer on his property. The
"appearance" problem was because it was commonly known that such fertilizer could
be used to make methamphetamine, and Jerrod and Perkins in fact had obtained it for
this purpose. Jerrod stated that the tote and air tank found on the property belonged
to Perkins and that Castleman was aware of their presence.
Before Jerrod gave his account of Castleman's confession, the district court
instructed the jury,
Members of the jury, . . . in the testimony of this witness, you're
about to hear evidence of acts or statements of the defendant. This
evidence is received for a limited purpose. You may consider this
evidence only as a circumstance tending to show consciousness of guilt
of the offense charged in this trial if you so interpret it. You are not to
consider this evidence for any other purpose. You are instructed also
that the receipt of this evidence does not in any way alter the
presumption of innocence and the government's burden of proof beyond
a reasonable doubt.
It is for you, the jury, to determine whether you believe the
evidence, and if you do, what weight and significance you accord it as
evidence of consciousness of guilt.
This same instruction was used in United States v. Gonsalves, 668 F.2d 73, 74 n.4
(1st Cir. 1982), and a slightly modified version of the same instruction was also part
of the final jury instructions in this case.
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Jerrod then testified that before Perkins had died, Castleman said that Perkins
"had to go." Castleman "was upset with [Perkins] because there was a good chance
that he would be testifying." Jerrod later learned that Perkins had been shot and
killed, and Castleman told Jerrod "he did it." According to Jerrod, Castleman said
that on the night he shot Perkins he went with a woman named Kim to the dog track
in West Memphis, left his cell phone with her, and drove back to Pocahontas where
Perkins's apartment was located. Wearing a wig and a trench coat, Castleman entered
the apartment and found Perkins asleep. Castleman shot Perkins twice with a nine
millimeter Glock, and Jerrod thought the shots hit Perkins in the face and chest.
Castleman drove away and threw the gun, two clips, the wig, and the trench coat into
a river.
FBI Agent Edward Jernigan provided additional evidence about the
circumstances of Perkins's death. Perkins had been scheduled to change his plea to
guilty on April 18, 2013, and this information was printed in a local newspaper prior
to his death. It was anticipated that he would cooperate with the government, and he
and Jerrod would have been the two most important witnesses in the case. His body
was found on April 15. Perkins was lying in his bed, and there was a gunshot wound
near his nose. Two spent nine millimeter casings which could have been fired from
a Glock were found in the apartment.
Castleman did not present any evidence in his defense. The jury returned a
guilty verdict on all three counts after a few hours of deliberation.
D.
The presentence investigation report calculated that Castleman's base offense
level for the conspiracy to manufacture methamphetamine conviction would be 26
based on drug quantity, with a total offense level of 34 after certain recommended
enhancements were added. See U.S.S.G. § 2D1.1(c)(7). The sentencing guidelines
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however provide that the base offense level of 43 applies "[i]f a victim was killed
under circumstances that would constitute [first degree] murder under 18 U.S.C.
§ 1111 had such killing taken place within" federal jurisdiction. U.S.S.G. §§ 2A1.1,
2D1.1(d)(1). The presentence investigation report recommended applying this higher
offense level, and Castleman objected.
At sentencing the government supplemented the trial testimony by offering
additional evidence to prove that Castleman murdered Perkins. Kim Caudle testified
about her trip to the West Memphis dog track with Castleman on the evening of
Saturday, April 13, 2013 and early morning of the next day. She and Castleman left
for the track around 10 p.m., and she drove because "he was a little messed up on
Xanax[] and meth." After they arrived at the track Castleman went in, gave her some
money and his cell phone, and left. His reason for leaving the phone was so that
Caudle could make some calls to Jerrod, whom she was then dating, without using
up her cell phone minutes. Phone records showed that the signal from Castleman's
cell phone bounced off the West Tennessee tower from 12:14 a.m. until 10:32 a.m.
on April 14, indicating that the phone was located at the dog track throughout that
time.
Caudle did not see Castleman again until after 4 a.m. Remembering that she
had not yet contacted Jerrod, Caudle called him. Caudle estimated that Castleman
was gone for three or four hours and she thought that would be long enough for him
to get to Pocahontas and back. Phone records showed calls made from Castleman's
phone to Jerrod's phone at 12:14 a.m. and 4:40 a.m., and a purchase was made using
Castleman's credit card at 4:47 a.m. Caudle stated that Castleman did not leave his
credit card with her. Regarding Castleman's ability to drive that night after taking
both Xanax and methamphetamine, Caudle said that he had been in car wrecks while
under the influence of Xanax, a depressant. She did not say how methamphetamine,
a stimulant, typically affected Castleman's driving.
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Agent Jernigan testified that Jerrod had described the route Castleman claimed
to have taken from the dog track to Pocahontas and back. Castleman had reportedly
passed through Blytheville and Corning, Arkansas on the way there and through Old
Davidsonville State Park and Black Rock, Arkansas on the way back. On cross
examination, the defense questioned Jernigan about the amount of time this route
would take. An estimate based on entering these locations into MapQuest was that
the entire trip would have taken about five hours, but phone records indicated that
Castleman had only been gone from the dog track for about four and one half hours.
Jernigan stated that such travel time estimates are based on traveling the speed limit
and that he could not know whether Castleman was speeding or how much.
At the sentencing hearing Jernigan also expanded on his trial testimony related
to Castleman's motive for murdering Perkins. He testified that Perkins had given a
proffer to the government before he was killed and that it was expected he would
testify against Castleman. Castleman was aware of Perkins's expected cooperation
because he was quoted in a newspaper as saying "he had learned that all except one
of his codefendants intends to plead guilty and presumably will testify." Perkins
would have testified that he cooked methamphetamine on the porch of the Castleman
residence three or four times when Jerrod was not present. As additional
corroboration of Jerrod's trial testimony, Agent Jernigan also noted that the location
and number of Perkins's wounds (one near the nose and one through his body) and
the type of weapon used had not been made public. Statements from a friend of
Perkins showed that Perkins could have been killed in the early morning of Sunday,
April 14, 2013. The friend had last seen Perkins at 11 or 11:30 p.m. on Saturday,
April 13 and received no answer when he knocked at Perkins's door at 8:00 a.m. on
Sunday.
Jerrod was not the only person with whom Castleman discussed killing Perkins.
Doyle Esmon testified that Castleman had told him "that he took care of business"
and had described going to the track with Kim Caudle, leaving to go to Pocahontas,
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and shooting Perkins twice in the bedroom of his apartment. Esmon thought
Castleman was bragging to get attention and did not believe him at the time. Esmon
also testified that he had sold Castleman a nine millimeter Glock handgun in 2010.
That was the type of gun which Jerrod had asserted was used in the murder. Forensic
analysis of bullets found at the scene of Perkins's murder and lodged in a tree on the
Castleman farm showed that they could all have been fired from a nine millimeter
Glock, but comparisons of the bullets to determine whether they were all fired from
the same gun were inconclusive. Shell casings found at both locations were made by
Sellier & Bellot, which a crime lab expert testified was a relatively uncommon
manufacturer.
Based on this evidence and the evidence presented at trial, the district court
found that the government met its burden of proving that Castleman had killed
Perkins under circumstances which would constitute first degree murder. Although
Castleman had argued that the government would have to prove this fact by clear and
convincing evidence, the district court determined that the proper burden was a
preponderance of the evidence under United States v. Villareal-Amarillas, 562 F.3d
892 (8th Cir. 2009). The court noted that the guideline range would be life, but the
applicable statutory maximum would be 64 years if Castleman were to serve
consecutive sentences for all three counts. Weighing the relevant factors under 18
U.S.C. § 3553(a), the district court sentenced Castleman to concurrent sentences of
480 months for the conspiracy to manufacture methamphetamine, 240 months for
maintaining a drug premises, and 48 months for conspiracy to possess chemicals and
equipment used to manufacture methamphetamine. Castleman appeals.
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II.
A.
Castleman argues that the district court erred in denying his motion to suppress
evidence obtained from the traffic stop on April 11, 2011. We "review the denial of
a motion to suppress de novo and the underlying factual determinations for clear
error." United States v. Henley, 766 F.3d 893, 911 (8th Cir. 2014). Castleman
acknowledges that Hoxie Police Chief Smith had probable cause to stop him for a
minor traffic violation, but he claims that Smith lacked authority under state law to
make an arrest in Walnut Ridge for Castleman had not committed a felony or
misdemeanor in Smith's presence. See Ark. Code Ann. § 16-81-106(c). He argues
that this seizure violated the Fourth Amendment under the nine factor test applied in
United States v. Atwell, 470 F. Supp. 2d 554 (D. Md. 2007).
Even if Arkansas law did not give Chief Smith authority to stop Castleman's
truck in Walnut Ridge, a seizure in violation of state law does not necessarily offend
the Fourth Amendment. In Virginia v. Moore, 553 U.S. 164, 166-67, 176 (2008), the
Supreme Court determined that officers had not violated the Fourth Amendment
when they arrested Moore for driving with a suspended license instead of issuing him
a summons, as would have been proper under Virginia law. The Court explained that
"when an officer has probable cause to believe a person committed even a minor
crime in his presence, the balancing of private and public interests is not in doubt.
The arrest is constitutionally reasonable." Id. at 171. States may provide additional
protections under their laws, but "a warrantless arrest satisfies the Constitution so
long as the officer has probable cause to believe that the suspect has committed or is
committing an offense." Id. at 173 (quotation omitted).
Applying Moore, we determined in Rose v. City of Mulberry, Arkansas, 533
F.3d 678, 680 (8th Cir. 2008) that no Fourth Amendment violation occurred when an
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Arkansas officer had probable cause to make a traffic stop and arrest but lacked
authority under state law. The constitutional standard is probable cause, not a
multifactor test balancing various interests and circumstances. Id. Here, Chief Smith
similarly had probable cause to stop Castleman and there was thus no Fourth
Amendment violation. The district court properly denied the motion to suppress
evidence obtained as a result of this seizure.
B.
Castleman also appeals the district court's denial of his motion to suppress
evidence obtained from searching the tote and trash bags located on his property. The
parties agree that these items were in an open field. Fourth Amendment protections
for people in their "persons, houses, papers, and effects" do not "extend[] to the open
fields," and individuals have "no legitimate expectation that open fields will remain
free from warrantless intrusion by government officers." Oliver v. United States, 466
U.S. 170, 176, 181 (1984) (quotations omitted). Police officers thus may "enter and
search a[n open] field without a warrant." Id. at 173.
Although the trash bags and tote were visible in an open field, Castleman
argues that the search of their contents nonetheless violated his Fourth Amendment
rights. In order to have standing to challenge the search of these items, Castleman
must have had a subjective expectation of privacy in these containers which was
objectively reasonable. United States v. Stallings, 28 F.3d 58, 60 (8th Cir. 1994).
Assuming that Castleman had a subjective expectation of privacy, the district court
determined that this expectation was not objectively reasonable. We review this legal
determination de novo. United States v. Douglas, 744 F.3d 1065, 1069 (8th Cir.
2014).
In Stallings, the defendant had left a tote bag (zipped shut) in an open field.
28 F.3d at 59. Nothing about the tote bag appeared suspicious, but officers found
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drug paraphernalia inside when they opened it. Id. We determined that "any
expectation of privacy Stallings had [was] not objectively reasonable . . . because
'animals, children, scavengers, snoops, and other members of the public' had access
to the tote bag" and the defendant did not show he had sought to preserve the bag as
private. Id. at 61, quoting California v. Greenwood, 486 U.S. 35, 40 (1988). There,
a "theoretical possibility" that any such animals or persons could access the item "was
sufficient to make a defendant's expectation of privacy unreasonable." Id., citing
Wabun-Inini v. Sessions, 900 F.2d 1234, 1242 (8th Cir. 1990).
Castleman claims that Stallings is distinguishable because unlike the defendant
in that case he owned the property and controlled access to it via a locked gate,
fences, and signs posted at the boundaries. It is clear that the differences Castleman
identifies did not create a legitimate expectation of privacy in the field itself.
Property ownership and efforts to control access to the area are not enough to create
an objectively reasonable expectation of privacy in open fields. Oliver, 466 U.S. at
179, 183. Law enforcement officers thus had the ability to access the open field
where the tote and trash bags were found regardless of the gate, fences, and signs on
Castleman's property. Other people could have also come across these items in the
field. Open fields are "as a practical matter . . . accessible to the public and the police
in ways that a home, an office, or commercial structure would not be" and "[i]t is not
generally true that fences or 'No Trespassing' signs effectively bar the public from
viewing open fields in rural areas." Id. at 179. Since the gate, fences, and signs on
the Castleman property did not afford him a reasonable expectation of privacy, they
do not add significant support to his claim of a reasonable expectation of privacy in
the tote and trash bags found on his property. Any differences between the open
fields in this case and in Stallings are therefore not material.
Moreover, the record here does not show that Castleman took steps to preserve
the privacy of the trash bags and tote. As in Stallings, those items bore no indicia of
ownership and Castleman "put on no evidence of his possession or control of the bag,
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his historical use of the tote bag, or his ability or attempts to regulate access to it."
28 F.3d at 60-61. These factors prevented a showing of an objectively reasonable
expectation of privacy in Stallings despite the bag being left in an open field because
the owner "failed to show how he sought to preserve the tote bag as private." Id. at
61; see also Douglas, 744 F.3d at 1070-72. Here, Castleman has similarly not shown
that he controlled, used, or attempted to restrict access to the tote and trash bags.
Our decision in United States v. Pennington, 287 F.3d 739 (8th Cir. 2002)
further supports the denial of Castleman's suppression motion. In Pennington,
officers in an open field observed "a ventilation pipe protruding from the ground
[and] a wooden pallet covering an entryway" to something underground. Id. at 745.
When they moved the pallet, they saw a ladder going down into a tunnel; inside the
tunnel was equipment used to manufacture methamphetamine. Id. We determined
that a warrantless search of this underground bunker did not violate the Fourth
Amendment given its location "in an open field, its readily visible entryway with an
unprotected ladder facilitating access to the tunnel, and no lock or door impeding
access." Id. at 746. Here, the trash bags and tote were visible in the open field and
they were not inside any building or structure. Although the tote was covered with
a lid, just as a wooden pallet covered the entrance to the bunker in Pennington, there
was no lock or surrounding structure preventing anyone present in the field from
opening it.
Because Castleman did not show that any expectation of privacy he had in the
trash bags and tote was objectively reasonable, the district court did not err in denying
his motion to suppress evidence obtained from searching these items.
C.
On appeal Castleman renews his challenge to the admission of trial testimony
about the murder of Perkins. Castleman argues that this evidence should have been
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excluded under Federal Rule of Evidence 403 because its limited probative value was
outweighed by the danger of unfair prejudice. Rule 403 provides in part, "The court
may exclude relevant evidence if its probative value is substantially outweighed
by . . . unfair prejudice." We give "great deference" to the district court's "balancing
of the relative value of a piece of evidence and its prejudicial effect" under this rule
and we reverse only if there was a "clear abuse of discretion." United States v.
Zierke, 618 F.3d 755, 759 (8th Cir. 2010) (quotation omitted); United States v. Bell,
761 F.3d 900, 912 (8th Cir. 2014) (quotation omitted).
Several Eighth Circuit cases have determined that "'evidence of death threats
against witnesses . . . is generally admissible against a criminal defendant to show
consciousness of guilt of the crime charged.'" Zierke, 618 F.3d at 759, quoting
United States v. DeAngelo, 13 F.3d 1228, 1232 (8th Cir. 1994); see, e.g. United
States v. Mondano-Gudino, 309 F.3d 501, 505 (8th Cir. 2002); United States v. Nunn,
940 F.2d 1128, 1130-31 (8th Cir. 1991). Such evidence is considered "direct
evidence of the crime charged" and is not subject to a Rule 404(b) analysis. Zierke,
618 F.3d at 759 (quotation omitted). If the district court has given an appropriate
limiting instruction, "this court has been reluctant to hold that evidence was unfairly
prejudicial." Id. (quotation and alteration omitted).
Castleman acknowledges our cases involving death threats against witnesses,
and he does not challenge the limiting instruction given by the district court. He
argues however that his case is different from death threat cases because Jerrod
testified about a completed homicide. He relies on United States v. Weir, 575 F.2d
668, 671 (8th Cir. 1978), in which we reversed a conviction because evidence of an
attempt to kill an informant should not have been admitted under Rule 403.
Castleman argues that Jerrod's testimony had little probative value but was highly
inflammatory because it portrayed Castleman as a cold blooded killer. He claims that
as in Weir, the effect of the testimony was to show the jury that he was a "bad" man
who "should be convicted because [he was] 'bad.'" Id. at 672.
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Weir differs in several ways from Castleman's case. The district court in Weir
had initially determined that the attempted murder evidence should be excluded under
Rule 403 before later changing its ruling despite "obvious misgivings." 575 F.2d at
670-71. As a result, the ordinary "rule of deference [wa]s not decisive." Id. at 670.
The contested evidence in Weir was introduced to explain why witness Jackson had
stayed at defendant Davis's house to hide and ultimately showed how Jackson had
been able to identify Davis. Id. Reviewing the decision on appeal, we stated the
explanation needed for this identification "could have been offered into evidence, by
appropriate questions, without going into the objectionable [attempted murder]
evidence." Id. at 671. Statements by the prosecutor in Weir "appear[ed] to be
calculated to enhance the effect of the [attempted murder] evidence on the jury in
suggesting an improper basis for a verdict of guilty," heightening the unfair prejudice,
and it is unclear whether the jury received any limiting instruction related to the
contested evidence. Id.
Unlike in Weir, the district court here did not change its ruling on the
admissibility of Jerrod's testimony. This evidence was received to show
consciousness of guilt, not to explain the context for an identification. The jury
received an appropriate limiting instruction and the prosecution did not make any
suggestion that the jury should convict on an improper basis. These differences are
significant, and Weir does not control here.
Giving appropriate deference to its balancing under Rule 403, we cannot say
that the district court committed a clear abuse of discretion. Testimony by Jerrod and
Agent Jernigan was highly relevant to consciousness of guilt.4 Perkins had planned
to change his plea to guilty and to cooperate with the government, Castleman was
4
The dissent suggests that the government should have shown why this
testimony was necessary. But the standard for admitting such evidence is relevance.
Fed. R. Evid. 402.
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aware of these circumstances, and he "was upset with [Perkins] because there was a
good chance that he would be testifying" and stated that he "had to go." At trial the
government elicited sufficient details from Jerrod and Agent Jernigan to make the
account of Perkins's murder believable, but it did not embellish the evidence through
unnecessary and unduly prejudicial details.5 Moreover, Castleman raises no
complaints about the prosecutors' statements or arguments at trial. Castleman admits
that the evidence as a whole was legally sufficient to support all three convictions,
and the jury was properly instructed regarding the value of the consciousness of guilt
evidence. Under these circumstances, it was within the district court's discretion to
determine that the probative value of the contested evidence outweighed the danger
of unfair prejudice under Rule 403.
D.
Castleman appeals the district court's determination at sentencing that he killed
Perkins under circumstances that would constitute first degree murder under 18
U.S.C. § 1111 if committed within federal jurisdiction. He first challenges the
preponderance of the evidence standard of proof applied by the district court. Our
precedent establishes that this was the correct standard. United States v. Villareal-
Amarillas, 562 F.3d 892, 895 (8th Cir. 2009).
Castleman also argues that even under a preponderance of the evidence
standard the government failed to meet its burden of proof. We review the district
court's factual findings at sentencing for clear error. United States v. Spotted Elk, 632
F.3d 455, 458 (8th Cir. 2011). The evidence showed that Perkins was killed between
11 p.m. on Saturday, April 13, 2013, when he was last seen alive, and Monday, April
5
Our cases illustrate that murder is frequently used "to enforce the rules of the
[drug trafficking] business." United States v. Dierling, 131 F.3d 722, 730-31 (8th Cir.
1997); see also United States v. Clay, 579 F.3d 919, 924-25 (8th Cir. 2009).
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15, when his body was found. He was likely dead by Sunday morning when he did
not answer a friend's knock at the door. Cell phone records and Caudle's testimony
indicated that Castleman was gone from the dog track for about four and one half
hours in the early morning of Sunday, April 14. Jerrod testified that his father had
confessed to driving from the dog track to Pocahontas, shooting Perkins in the face
and chest with a nine millimeter Glock, and returning to the dog track. The
information Jerrod knew about the number and location of Perkins's wounds and the
type of weapon used was not publicly available. Testimony from Jerrod and Agent
Jernigan showed that Castleman had a motive to kill Perkins because he feared
Perkins would testify against him in this criminal case.
Notwithstanding this evidence, Castleman claims that the government could
not meet its burden of proof. He first points to the lack of physical evidence
connecting him directly to the crime scene. Although ballistics experts could not
determine whether the bullets used to kill Perkins were fired from the same gun used
at the Castleman property, the same uncommon type of shell casings were found in
both locations and there was evidence that Castleman owned the type of gun used to
commit the murder. Castleman also argues that it would have been impossible for
him to travel from the dog track to Pocahontas and back because the trip was
estimated to take five hours, not four and one half hours, and because he had taken
Xanax which was known to impair his driving. The five hour round trip estimate
offered by the defense was based on driving the speed limit, and Castleman could
have been speeding. Caudle testified that Castleman had taken both Xanax and
methamphetamine earlier in the evening, and it was not clear whether he was still
under the influence of both substances when he left the dog track or how the
combination of a depressant and a stimulant would affect his ability to drive.
Taking into account all the evidence presented, the district court did not clearly
err in finding that Castleman murdered Perkins in a manner that was "willful,
deliberate, malicious, [or] premeditated," 18 U.S.C. § 1111, a finding that was
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necessary to apply a higher base offense level under U.S.S.G. §§ 2A1.1 and
2D1.1(d)(1).
III.
For these reasons, the judgment of the district court is affirmed.
COLLOTON, Circuit Judge, concurring.
I join the opinion of the court and add this observation about the dissenting
opinion’s reliance on United States v. Pennington, 287 F.3d 739, 745 (8th Cir. 2002).
The dissent cites Pennington to establish that a warrantless search of a “man-made
enclosure” found in an open field is “prohibited.” The dissent then reasons that
Pennington’s analysis of the Fourth Amendment as applied to a man-made enclosure
should also apply to a tote in an open field.
The dissent accurately characterizes Pennington, but Pennington based its dicta
on a misreading of United States v. Dunn, 480 U.S. 294 (1987), which involved the
observation of items located in a barn in an open field. Dunn did not resolve that a
property owner has a reasonable expectation of privacy in a man-made enclosure
located in an open field. Dunn said merely that “[w]e may accept, for the sake of
argument, respondent’s submission that his barn enjoyed Fourth Amendment
protection and could not be entered and its contents seized without a warrant.” 480
U.S. at 303 (emphasis added). The Court, again referring to the barn, said that its
conclusion was unaffected by “the fact that the objects observed by the officers lay
within an area that we have assumed, but not decided, was protected by the Fourth
Amendment.” Id. at 304 (emphasis added). The Court simply did not decide whether
a barn in an open field is protected by the Fourth Amendment. See also Cady v.
Dombrowski, 413 U.S. 433, 449-50 (1973) (“We . . . need not reach the question . . .
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whether a search of the back seat of this car, located as it was in an open field,
required a search warrant at all.”).
To reason that a tote in an open field is protected by the Fourth Amendment
because a man-made enclosure is protected, one must first address whether a man-
made enclosure is protected. That question is not without difficulty. The Fourth
Amendment protects the right of the people to be secure in their “persons, houses,
papers, and effects,” and the Supreme Court has taken a textual approach when
considering application of the Amendment to open fields. See Oliver v. United
States, 466 U.S. 170, 176-77 & n.6 (1984); Hester v. United States, 265 U.S. 57, 59
(1924). At common law, “no distant barn, warehouse, or the like” was “under the
same privileges” as a private house. See 4 William Blackstone, Commentaries *225
(cited in Hester, 265 U.S. at 59). If a man-made enclosure such as a barn is therefore
not a “house,” and if it is not an “effect” (because “[t]he Framers would have
understood the term ‘effects’ to be limited to personal, rather than real, property,”
Oliver, 466 U.S. at 177 n.7), then it would take some work to address whether the
Fourth Amendment nonetheless applies to the search of a barn in an open field.
Compare, e.g., People v. Pitman, 813 N.E.2d 93, 105-07 (Ill. 2004) with id. at 110-14
(Thomas, J., dissenting); cf. See v. City of Seattle, 387 U.S. 541, 543 (1967) (applying
the Fourth Amendment to commercial premises); Thomas Y. Davies, Recovering the
Original Fourth Amendment, 98 Mich. L. Rev. 547, 711 (1999) (concluding that the
textual formulation “implied that ‘houses’ were the only type of premises protected
by the right to be secure”). It is not sufficient to construe an analytical assumption
from Dunn as a rule of law.
In the end, whether or not a barn or other man-made enclosure in an open field
is protected by the Fourth Amendment is not dispositive in this case. The trash bags
and tote may be among Castleman’s “effects,” but where and how personal property
is maintained bears on the extent to which the Fourth Amendment protects the owner.
See Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring) (“‘[T]he
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Fourth Amendment protects people not places.’ The question, however, is what
protection it affords to those people. Generally, as here, the answer to that question
requires reference to a ‘place.’”); cf. United States v. Thomas, 864 F.2d 843, 845
(D.C. Cir. 1989) (“[I]t is possible for a person to retain a property interest in an item,
but nonetheless to relinquish his or her reasonable expectation of privacy in the
object.”). For reasons given in the opinion of the court, I agree that the search of
trash bags and a tote in an open field did not violate the Fourth Amendment under the
circumstances presented here.
KELLY, Circuit Judge, concurring in part, dissenting in part.
I concur in the court’s opinion as to part IIA. I respectfully dissent, however,
from part IIB. As the court notes, the parties agree that the plastic bags and tote that
were the subject of the warrantless search were located in an open field. See Oliver
v. United States, 466 U.S. 170, 178–79 (1984). I agree with the court that the
containers searched were in plain view to law enforcement. The question on appeal
is whether Bob Sam Castleman had an objectively reasonable expectation of privacy
in these closed containers.6 The court concludes he did not. With respect to the tote,
I believe he did.7
6
The district court and this court on appeal have assumed Castleman had a
subjective expectation of privacy in the bags and tote searched. I have done the same.
7
The containers seized and searched included full plastic trash bags and a hard-
sided plastic tote. I recognize that plastic trash bags are sometimes used for storage
of items a person wants to save, not discard. Thus, in some situations, a person may
be able to show a subjective expectation of privacy in a closed plastic trash bag, and
that expectation may be objectively reasonable. In this case, however, there is no
indication that the plastic bags were anything but full of trash. I therefore concur in
the court’s conclusion that Castleman failed to meet his burden of proving that any
expectation of privacy he may have had in discarded trash was objectively reasonable.
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Law enforcement officers are required to obtain a warrant or otherwise have
constitutional justification to access the contents of a closed container, even if the
officer is lawfully present where the closed container is found. See United States v.
Banks, 514 F.3d 769, 773–74 (8th Cir. 2008) (“Ordinarily, a warrant is necessary
before police may open a closed container because by concealing the contents from
plain view, the possessor creates a reasonable expectation of privacy.”). There are
exceptions, of course. One such exception is that law enforcement “may seize,
without a warrant, an item that is (1) in plain view, (2) when it is observed from a
lawful vantage point, (3) where the incriminating character of the item is immediately
apparent.” Id. The tote in this case, however, was not incriminating in and of itself,
and there was nothing externally visible to indicate the containers held evidence of
a drug manufacturing operation. See id. at 775 (finding the search of a gun case
without a warrant constitutionally acceptable, as the container was readily identifiable
as a single-purpose container—namely, a gun case). Thus, while the officers were
lawfully in the open field when they observed the tote, there was nothing about the
tote itself that suggested the owner did not have a reasonable expectation of privacy
in its contents. See id.
The tote was found on Castleman’s own 262-acre parcel of property, which is
an important factor in determining whether his expectation of privacy in a closed
container found there was objectively reasonable. Cf. United States v. Douglas, 744
F.3d 1065, 1070 (8th Cir. 2014) (holding the defendant failed to demonstrate an
objectively reasonable expectation of privacy over items found on his aunt and
uncle’s property); United States v. Stallings, 28 F.3d 58, 61 (8th Cir. 1994) (stating
the defendant did not have an objectively reasonable expectation of privacy in items
he had left unattended on someone else’s property). Castleman also took efforts to
restrict access to his property with barbed-wire fences, a locked gate, and “No
Trespassing” signs. Cf. Douglas, 744 F.3d at 1070 (holding the defendant failed to
demonstrate his expectation of privacy was reasonable, as he had not attempted to
regulate access to the bag beyond generally demanding the officers leave his aunt and
-23-
uncle’s property). While fences, gates, and “No Trespassing” signs do not
“effectively bar the public from viewing open fields in rural areas,” and thus cannot
establish a reasonable expectation of privacy in an open field, Oliver, 466 U.S. at
178–79, those same fences, gates, and signs are relevant when determining whether
an expectation of privacy in items in that open field is objectively reasonable. Cf.
Stallings, 28 F.3d at 60 n.3 (“[T]he fact that the bag was left in an open field owned
by another is highly relevant, as a factual matter, in demonstrating the reasonableness
of [the defendant’s] expectation of privacy.”).
Castleman also did not place the containers in a location where he expected
they would be taken or accessed by a third party. Cf. California v. Greenwood, 486
U.S. 35, 40 (1988) (finding the respondents did not manifest a reasonable expectation
of privacy in the garbage bags left on or near the public street, as they placed the bags
on the curb “for the express purpose of conveying it to a third party”—namely, trash
collectors). The tote in this case was found approximately 200 yards from
Castleman’s house, and not near the road or driveway leading to his home where
visitors might frequent. Although the tote was visible to law enforcement during a
search of the open fields, it was mostly covered by a plastic tarp. Castleman had both
partially protected the tote from the elements and largely shielded it from the view of
potential passers-by.
The court relies in part on United States v. Pennington, 287 F.3d 739 (8th Cir.
2002), to support the conclusion that Castleman lacked an objectively reasonable
expectation of privacy in the tote. In Pennington, we found no error in the district
court’s denial of Pennington’s motion to suppress items found in an underground
bunker located in an open field on his property. Yet the court made it clear that “the
open fields doctrine only allows a search of what is in plain view in the open field.
It does not justify a warrantless search of a man-made enclosure found in an open
field.” Pennington, 287 F.3d at 745. Recognizing the important distinction between
a warrantless search of a man-made enclosure (prohibited) and a warrantless search
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of “what is in plain view in the open field” (permissible), Pennington presented the
court with “a very close issue.” Id. Only the facts that the entrance to the
underground bunker was “readily visible” with an “unprotected ladder facilitating
access to the tunnel” and “no lock or door impeding access” to that entrance rendered
the warrantless search permissible. Id. at 746.
The reasoning we applied with regard to a “man-made enclosure” in
Pennington should, in my view, also apply to the tote. A man-made enclosure may
be in plain view in an open field, but law enforcement is not permitted to search that
enclosure without a warrant, even if officers are lawfully in the open field in the first
instance. See id. at 745. Similarly, the tote itself was in plain view in an open
field—and law enforcement lawfully observed it there—but its contents were not.
The tote was opaque plastic and the lid was closed, thereby completely concealing the
contents from view. Law enforcement was therefore required to obtain a warrant
before searching the tote.
The fact that a closed container is located in an open field does not mean a
person has abandoned any objectively reasonable expectation of privacy in its
contents. Instead, such circumstances require a fact-specific inquiry. See, e.g.,
Douglas, 744 F.3d at 1070–72; Stallings, 28 F.3d at 61. In my view, the facts of this
case present a close call, but the evidence presented in this case was enough to
establish a reasonable expectation of privacy. The contents of the tote were not
visible or readily ascertainable by sight, and the tote itself was mostly covered by a
tarp. The tote, a common type of storage bin for personal items, was located on
property owned by Castleman, and that property was fenced, had a locked gate, and
had posted “No Trespassing” signs. Because Castleman took minimally sufficient
steps to preserve the tote as private, I conclude he had an expectation of privacy in
the tote that society is prepared to recognize as objectively reasonable.
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I also respectfully dissent from part IIC of the court’s opinion. I agree that
evidence of threats, including death threats, may be admissible to illustrate
“consciousness of guilt.” See United States v. Zierke, 618 F.3d 755, 759 (8th Cir.
2010). In some cases, it may be probative of guilt of the charged offense. Id.; see
also United States v. Burnett, 579 F.3d 129, 133 (1st Cir. 2009) (holding that
evidence of a death threat may be introduced for a purpose “such as demonstrating
consciousness of guilt by showing the lengths to which a defendant will go to keep
damaging testimony out of his trial”). On this issue, I do not disagree with the court.
Yet even probative evidence may be inadmissible if the prejudicial effect of that
evidence substantially outweighs its probative value. United States v. Weir, 575 F.2d
668, 671 (8th Cir. 1978). In my view, the danger of unfair prejudice from
introduction of the disputed evidence—that Castleman not only threatened a
government witness, but in fact carried out that threat by murdering
him—substantially outweighs its probative value. See FED. R. EVID. 403.
When considering the admissibility of a threat, there are several relevant
factors to consider in determining whether the danger of unfair prejudice outweighs
the probative value. These factors may include (1) whether the threat was “an
emotional or impulsive reaction” as opposed to a calculated or premeditated plan to
carry out the threat; (2) whether the jury heard “graphic details of how the threat
would be carried out”; and (3) the inflammatory nature of the threat. Burnett, 579
F.3d at 134.
First, this case did not merely involve an emotional or impulsive threat.
Rather, it also involved evidence of a premeditated murder carrying out that threat.
Evidence that Castleman told his son, Jerrod Castleman, that Travis Perkins “had to
go” may have been an impulsive statement or threat; the record offers little more than
the statement itself, so it is difficult to know. Yet even if this threat was made on
impulse, the evidence presented at trial did not stop there. Instead, the government
introduced evidence of a calculated murder. Specifically, Jerrod testified that his
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father left his cell phone behind and drove from West Memphis, where he had been
at the dog track, to the small town of Pocohontas, where Perkins lived. He then went
to Perkins’s apartment wearing a wig and a trench coat, walked into Perkins’s
bedroom, and shot Perkins in the face and chest with a handgun before disposing of
the gun, holster, two clips, wig, and trench coat in the river. Rather than hearing
about a simple, impulsive threat, the jury heard evidence of a murder and attempted
cover-up, thus increasing the risk of an unfair prejudicial effect. Cf. id. (holding the
threat was merely an impulsive reaction, which supported the district court’s decision
to allow the evidence).
Second, instead of hearing how the threat would be carried out, the jury heard
how the threat was in fact carried out by Castleman. And the government’s case
agent—after already testifying in the government’s case-in-chief—was recalled to the
witness stand to corroborate some of the details Jerrod provided, testifying that
Perkins’s “feet and legs were hanging off the side of the bed . . . as if either he was
about to get up or had just laid down, one or the other, when he had been killed.” The
agent also confirmed Perkins was shot in “the nasal area” and that there were two
shell casings found on the floor near the body. These details, amounting to far more
than a mere threat showing a consciousness of guilt, provided the jury with a graphic
description of an actual murder of a government witness by Castleman. Cf. id. (In
weighing the probative value of death threat against danger of unfair prejudice, we
consider, among other things, “whether the jury heard graphic details of how the
threat would be carried out.”).
Third, the evidence in this case—evidence of a murder of a government
witness, presented unexpectedly in the middle of a drug conspiracy trial—was
inflammatory in nature, thereby adding to its prejudicial impact. See id. (“We accept
that Burnett’s threat was inflammatory because it was aimed at [the witness’s]
daughter.”); see also United States v. McManaman, 606 F.2d 919, 926 (10th Cir.
1979) (“[H]earing and reading the taped conversation lead us to the conviction that
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the inflammatory talk of the plans of murders clearly must have predominated in
impact over the discussion of drug dealings.”). Even if probative of guilt, there was
a substantial risk that this evidence improperly “divert[ed] the jury’s attention from
the material issues in the trial.” United States v. Fawbush, 634 F.3d 420, 423 (8th
Cir. 1990) (concluding other-act evidence that defendant had sexually abused his
daughters and fathered a child with one of them was so inflammatory that it diverted
the jury’s attention and should have been excluded under Rule 403). The material
issues at Castleman’s trial included whether he voluntarily and intentionally joined
a conspiracy to manufacture methamphetamine and whether he voluntarily and
intentionally allowed other individuals to use his property to manufacture
methamphetamine. Then, on the third day of trial, the jury heard from Castleman’s
son that Castleman had also committed murder. Murder is a type of crime quite
different in kind and quality than drug trafficking, and it is difficult to imagine that
this evidence did not change the tone, tenor, and focus of the trial.8
Another relevant factor for consideration in this case is the government’s delay
in filing its notice of its intent to offer evidence of the murder until the morning of the
third day of trial. Trial started on Thursday; on the following Monday morning, the
government said they “learned on Thursday morning of last week about this
information, but [we] did not have a chance to talk directly with Mr. Jerrod Castleman
about the information.”9 The district court allowed the evidence and granted a one-
8
While not a dispositive factor, courts have considered “the Government’s need
for the evidence” to prove its case at trial. See Burnett, 579 F.3d at 134; United
States v. Check, 582 F.2d 668, 685 (2d Cir. 1978) (noting that, due to the “severe
prejudice [that] can result from the use of death threat testimony . . . we have carefully
limited that use to situations where there was a clear need for the prosecution to use
such evidence”). The government did not explain why the consciousness of guilt
evidence in this case was necessary.
9
The government also stated that “Jerrod Castleman’s safety” “played into the
timing” of the filing of the notice of intent to offer additional evidence, although it
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day continuance. The evidence was presented the following day.10 Thus, any “danger
of unfair prejudice” was exacerbated because Castleman, as a practical matter, had
no opportunity to investigate or prepare a meaningful defense to this new, highly
damaging consciousness of guilt evidence. And, as a result, the jury was left with
only the government’s version of events. Perhaps Castleman would not have been
successful, even with additional time, in presenting an alternative explanation or
lodging a credible defense to the murder allegation. As it happened, however, he was
not given an opportunity.
Federal Rule of Evidence 403 “does not offer protection against evidence that
is merely prejudicial in the sense of being detrimental to a party’s case. The rule
protects against evidence that is unfairly prejudicial, that is, if it tends to suggest
decision on an improper basis.” United States v. Myers, 503 F.3d 676, 681–82 (8th
Cir. 2007) (quotation omitted); see also FED. R. EVID. 403 advisory committee’s note
(explaining that unfair prejudice “means an undue tendency to suggest decision on
an improper basis, commonly, though not necessarily, an emotional one”). In this
case, the danger of unfair prejudice was simply too strong. Without notice prior to
trial, the government introduced evidence not only that Castleman had made a threat
against a government witness, but that he had in fact carried through on that threat
and violently murdered that witness prior to trial. See Burnett, 579 F.3d at 133
(While evidence that defendant threatened to kill a witness pre-trial may be
admissible to show consciousness of guilt, “[s]uch evidence can be highly prejudicial
. . . and it should not be admitted if its probative value is substantially outweighed by
the danger of unfair prejudice.” (quotation omitted)). It is unrealistic, and unfair, to
did not elaborate on this concern.
10
Keep in mind, too, that jury selection would not have filtered any individual
venire members who might have expressed a real concern about sitting on a jury at
a trial where evidence of a murder would be introduced and who, as a result, could
not be fair and impartial.
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expect a jury to compartmentalize this accusation into the category of “consciousness
of guilt” and “not to consider this evidence for any other purpose.” See Instruction
No. 17. The risk that the jury would render its decision “on an improper basis” under
these circumstances is unacceptably high.
I recognize that the district court gave a limiting instruction in this case, both
at the time of the testimony and again in the final instructions read to the jury. I also
recognize the deference properly given to district courts who must make difficult
evidentiary decisions during the course of a trial. I believe, however, the probative
value of the evidence that Castleman murdered a co-conspirator prior to trial was
substantially outweighed by the danger of unfair prejudice and should have been
excluded. See Weir, 575 F.2d at 670–71. On this issue, I respectfully dissent.
Because the error in admitting the testimony about Castleman’s alleged murder
of Perkins was not harmless, I would reverse the conviction on that grounds. I
therefore would not reach the sentencing issues addressed in part IID.
______________________________
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