United States v. Dean (Larry)

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 10 2001
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. Nos. 01-7006 and 01-7007
(D. Ct. No. 99-CR-92-B)
LARRY EDWARD DEAN and (E.D. Okla.)
STELLA LOUISE DEAN ,
Defendants-Appellants.
ORDER AND JUDGMENT *
Before TACHA, Chief Judge, PORFILIO, and BRISCOE, Circuit Judges.
A jury convicted Larry Edward Dean of distribution of methamphetamine
and possession of methamphetamine with intent to distribute, in violation of 21
U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The district court sentenced him to 168
months imprisonment for each count, to be served concurrently, followed by 36
months of supervised release. The jury convicted Stella Louise Dean of the same
charges. The district court sentenced her to 135 months imprisonment for each
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
count, to be served concurrently, followed by 36 months of supervised release.
Both defendants appealed.
A jury heard the Deans’ cases in a joint trial that was followed by a joint
sentencing hearing. Larry and Stella Dean’s cases involve the same issues, except
for one additional issue in Stella Dean’s case. We therefore address them in a
joint order and judgment. We exercise jurisdiction pursuant to 28 U.S.C. § 1291and 18 U.S.C. § 3742 and affirm.
I. Background
The defendants Larry Dean and Stella Dean are a married couple who, prior
to their arrests, shared a residence in Hugo, Oklahoma. On November 30, 1999,
informant Sheila Taylor used a hidden video camera to record her purchase of a
bag of methamphetamine from Larry and Stella Dean at their home. On
December 2, 1999, officers from the Oklahoma Bureau of Narcotics and the
Federal Bureau of Investigation executed a search warrant at the Deans’ home.
The officers seized drugs from the home and from the person of Stella Dean. The
Deans were arrested later that month and charged with distribution of
methamphetamine and possession of methamphetamine with intent to distribute in
violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.
Following their convictions and a joint sentencing hearing, the district
court concluded that the Deans were engaged in joint criminal activity, that each
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defendant independently executed certain drug transactions in furtherance of the
joint activity, and that the other defendant could reasonably have foreseen those
transactions. Therefore, pursuant to section 1B1.3(a)(1)(B) of the Sentencing
Guidelines, the district court treated each defendant’s independently completed
drug transactions as relevant conduct for purposes of determining the other
defendant’s base offense level.
II. Discussion
The Deans make three joint arguments. First, they contend that the trial
court erroneously failed to suppress evidence seized with a defective warrant.
Second, they contend that the trial court made erroneous factual findings as to
drug quantity at sentencing. Third, each defendant asserts that the trial court
erroneously considered drug transactions at sentencing that involved only the
other defendant. In addition, Stella Dean argues that the trial court erred in
admitting evidence when there was a gap in the chain of custody. We hold that
the trial court did not err in any of these respects.
A. The Motion to Suppress
Police searched the Deans’ house pursuant to a daytime search warrant
issued by U.S. Magistrate Judge James H. Payne. Judge Payne issued the warrant
in Muskogee, Oklahoma on December 1, 1999 at 5:10 p.m. Police served the
warrant at the Deans’ residence in Hugo, Oklahoma (approximately 150 miles
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from Muskogee) on December 2, 1999, and the return was filed on December 9,
1999. Both a “1” and an “8,” one written over the other, were written in the
space where the judge enters language commanding officers to perform the search
by a specific date. There are no initials next to the change. It is impossible to
tell by looking at the warrant which number represents the date originally entered.
The Deans contend that the changed date leaves the warrant without a
specified period of time, rendering the warrant defective and requiring
suppression of the evidence seized in the subsequent search. We disagree.
At a suppression hearing, the parties stipulated that Judge Payne would
testify that: (1) he would not issue a daytime warrant for Choctaw County at 5:10
p.m. to be executed on that date; (2) he normally gives seven days for an
execution of a warrant; (3) the number 8 would have been consistent with the
time he normally would give for the service of this warrant; (4) he did not recall
writing an “8” over a “1” on this particular warrant; and (5) he normally would
have initialed any such modification.
When reviewing a denial of a motion to suppress, we accept the district
court’s factual findings unless clearly erroneous and view the evidence in the
light most favorable to the government. United States v. Hill, 199 F.3d 1143,
1147 (10th Cir. 1999) (quoting United States v. Hargus, 128 F.3d 1358, 1361
(10th Cir. 1997)).
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Federal Rule of Criminal Procedure 41(c)(1) provides that
[A warrant] shall command the officer to search, within a specified
period of time not to exceed 10 days, the person or place named for
the property or person specified. The warrant shall be served in the
daytime, unless the issuing authority, by appropriate provision in the
warrant, and for reasonable cause shown, authorizes its execution at
times other than daytime.
Fed. R. Crim. P. 41(c)(1).
Absent a clear constitutional violation, noncompliance with Rule 41 1
requires suppression of evidence only where “(1) there was ‘prejudice’ in the
sense that the search might not have occurred or would not have been so abrasive
if the rule had been followed, or (2) there is evidence of intentional and deliberate
disregard of a provision in the Rule.” United States v. Hugoboom, 112 F.3d
1081, 1087 (10th Cir. 1997) (citations omitted). Nothing here indicates that the
search would not have occurred if the date change had been initialed. The Deans
insinuate that the date was possibly changed by an officer after the fact, which
would certainly violate the second prong of Hugoboom. However, they offer no
direct evidence to this effect. The only possible evidence is the “8” written over
the “1.” However, the district court found, and the facts clearly support, that
December 8 was the operative date. It is unlikely that Judge Payne would have
1
Since we hold that any violation under these circumstances would not
have a remedy, we do not directly address the question of whether there was
actually a violation of Rule 41.
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issued a daytime warrant at 5:10 p.m. to be served 150 miles away on the same
day. These facts are consistent with Judge Payne’s accidentally writing the date
the warrant was issued (“1”) in the blank, realizing his error, and correcting it
with an “8.” Thus, neither of the prongs from Hugoboom is met, and there is no
clear error in the district court’s finding. We affirm the district court’s denial of
the motion to suppress.
B. Credibility of the Witnesses
The Deans contend that Sheila Taylor was an unreliable witness and that
the district court committed clear error when it relied upon Taylor’s testimony to
determine the relevant drug quantity during sentencing. We review a district
court’s determination of witness credibility for clear error. United States v.
Keeling, 235 F.3d 533, 535 (10th Cir. 2000), cert. denied, 121 S. Ct. 2575 (2001).
Taylor confessed to memory problems as the result of drug use and
admitted that she did not have specific records of her drug transactions.
However, she also provided detailed testimony regarding the amount of drugs she
bought from the Deans, and she expressed certainty regarding the amounts she
purchased and used. She provided specific instances of her drug use and
estimated the frequency of her drug transactions with the Deans. To the extent
that her testimony at the sentencing hearing differed from her earlier statement
about drug quantity, the court relied on her lower estimates. Another witness,
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Amanda Cherry, testified that she and others she knew regularly obtained
methamphetamine from Larry and Stella Dean. While Cherry’s testimony was not
offered or used to increase the drug quantities for sentencing purposes, it did
provide corroboration for Taylor’s testimony that Larry Dean regularly distributed
methamphetamine.
While Taylor was not a perfect witness, there was sufficient basis for
finding her testimony about drug quantity reliable. The district court did not
commit clear error in crediting her testimony.
C. Use of Relevant Conduct at Sentencing
Each defendant contends that the district court incorrectly considered the
other’s conduct as relevant conduct for sentencing purposes.
Section 1B1.3(a) in the Sentencing Guidelines Manual directs the
sentencing court to determine a defendant’s base offense level on the basis of the
defendant’s acts and omissions, but also “in the case of a jointly undertaken
criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by
the defendant in concert with others, whether or not charged as a conspiracy), all
reasonably foreseeable acts and omissions of others in furtherance of the jointly
undertaken criminal activity.” The commentary describes this section’s
application to drug offenses: “[T]he defendant is accountable for all quantities of
contraband with which he was directly involved and, in the case of a jointly
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undertaken criminal activity, all reasonably foreseeable quantities of contraband
that were within the scope of the criminal activity that he jointly undertook.”
U.S. Sentencing Guidelines Manual § 1B1.3, cmt. 2. The district court found that
the Deans were engaged in a joint criminal activity, that each had committed acts
in furtherance of that activity, and that these acts were reasonably foreseeable by
the other. The court therefore treated acts by each defendant as relevant conduct
in determining the other defendant’s base offense level.
We review for clear error factual findings underlying the district court’s
determination of the base offense level. United States v. Roederer, 11 F.3d 1467,
1477 (1993). The relevant questions here are whether the attributed conduct was
“in furtherance of” a joint activity and whether it was “reasonably foreseeable” by
the defendant to whom it was attributed.
There was ample evidence that the Deans, from at least April 1998, 2
were
engaged in the “jointly undertaken criminal activity” of providing Taylor with a
regular supply of methamphetamine and that each made sales “in furtherance of”
that activity. Taylor testified at the joint sentencing hearing that she regularly
obtained methamphetamine from Larry and Stella Dean. Taylor further testified
that the Deans provided her with about half of her methamphetamine supply each
2
Taylor testified that she first met Stella Dean and purchased
methamphetamine from her in April of 1998. The district court attributed to
Stella Dean no conduct that occurred before April 1998.
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week. She specifically testified that Larry Dean, or sometimes Stella Dean,
delivered drugs to her house or to her place of employment. She explained that
when she visited the Deans’ home, either Larry or Stella Dean would provide her
with methamphetamine. Taylor also testified that, after she had driven someone
to Austin to purchase methamphetamine for Larry Dean, Stella Dean came to her
home and picked it up. This testimony was sufficient to support a finding by the
preponderance of the evidence that the Deans regularly provided Taylor with
drugs and that they engaged, both independently and together, in drug transactions
in furtherance of this jointly undertaken activity. 3
The remaining question is whether each defendant could reasonably have
foreseen the acts of the other. Imputation of drug quantities does not require that
the defendant have had direct involvement in the transactions. U.S. Sentencing
Guidelines Manual § 1B1.1(a)(1)(B); United States v. Williams , 897 F.2d 1034,
1041 (10th Cir. 1990).
Taylor testified that she met with the Deans both independently and
together from April 1998 until November 30, 1999. She testified that she
regularly bought similar amounts of methamphetamine from the Deans, and that
3
We find no merit to the defendants’ arguments that each received no
benefit from the other’s transactions. These were not isolated transactions. Both
Deans were engaged in the joint activity of supplying Taylor with
methamphetamine, and both Deans benefitted from the maintenance of the
profitable relationship.
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her purchases were from Larry Dean, Stella Dean, or both. Larry Dean could
reasonably have foreseen that Stella Dean would provide the drugs to Taylor,
even on occasions where Larry Dean was not present. Similarly, Stella Dean
could reasonably have foreseen that Larry Dean would provide methamphetamine
to Taylor, even if we accept Stella Dean’s assertion that she could not foresee that
he would sometimes accept sex as payment, which he did. We therefore hold that
the district court did not err in attributing each defendant’s conduct to the other
for purposes of calculating the base offense level.
D. The Chain of Custody
Stella Dean contends that the district court improperly permitted the
government to introduce evidence at trial where the chain of custody had been
broken. Agent Brian Veazey seized 6.6 grams of methamphetamine that
informant Taylor bought from the Deans on November 30, and he seized 0.39
grams of methamphetamine from Stella Dean during the execution of the search
warrant on December 2. Veazey submitted both items to the Oklahoma State
Bureau of Investigation (OSBI) laboratory in McAlester, Oklahoma, and they
were later moved to the OSBI laboratory in Durant, Oklahoma and tested there.
Veazey testified that he sealed the evidence before submitting it to the McAlester
laboratory. The forensic chemist who tested the evidence at the Durant laboratory
testified that both items were sealed when she received them, that there were no
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signs of tampering, and that she broke the seals. The chemist also testified that
the initials on the evidence envelopes indicated that the supervisor of the
McAlester laboratory had transported the evidence to Durant. There were,
however, no submittal sheets with the evidence to show its receipt at the Durant
laboratory.
We review a decision to admit evidence for abuse of discretion. United
States v. Cardenas, 864 F.2d 1528, 1530 (10th Cir. 1989).
Before admitting or excluding real evidence, the trial court must
consider the nature of the evidence, and the surrounding
circumstances, including presentation, custody and probability of
tampering or alteration. If, after considering these factors, the trial
court determines that the evidence is substantially in the same
condition as when the crime was committed, the court may admit it.
Id. at 1531. Absent evidence of tampering, deficiencies in the chain of custody
go to the weight of the evidence and not its admissibility. Id.; United States v.
Mora, 845 F.2d 233, 237 (10th Cir. 1988).
The only break in the chain of custody involved the transportation from the
McAlester laboratory to the Durant laboratory. Although the defendants assert
that tampering may have occurred, there was no evidence to suggest actual
tampering. 4
Moreover, “[t]he trial court need not rule out every possibility that
4
The defendant’s only specific argument to support the contention that
tampering may have occurred is that the total amount of these two items, 6.99
grams, is coincidentally close to 7 grams, which is the amount Taylor thought she
(continued...)
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the evidence underwent alteration; it need only find that the reasonable
probability is that the evidence has not been altered in any material aspect.”
Cardenas, 864 F.2d at 1532. We therefore hold that the district court did not
abuse its discretion in admitting the evidence.
III. Conclusion
For these reasons, we AFFIRM the rulings of the district court on all
issues.
ENTERED FOR THE COURT,
Deanell Reece Tacha
Chief Circuit Judge
4
(...continued)
was buying on November 30. Stella Dean argues that this coincidence suggests
that the .39 grams seized from her on December 2 may in fact have been taken
from the amount Taylor purchased on November 30, reducing the weight of the
original amount to 6.99 grams. This coincidence, however, does not alter the
reasonableness of the trial court’s finding that the evidence had not been altered.
There is no evidence to demonstrate that a precise and accurately calibrated scale
was used to measure an amount for Taylor’s purchase on November 30. Instead,
there is reason to be skeptical of the accuracy of a drug distributor’s weight
measurements.
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