United States v. Don D. Howard

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 98-2123
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United States of America, *
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Appellee, *
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v. *
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Don D. Howard, *
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Appellant. *
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Appeals from the United States
No. 98-2322 District Court for the
__________ Western District of Missouri
United States of America, *
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Appellee, *
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v. *
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Ruth Potts, *
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Appellant. *
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Submitted: December 14, 1998
Filed: March 3, 1999
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Before LAY, McMILLIAN, and HALL,1 Circuit Judges.
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HALL, Circuit Judge.
Don Howard ("Howard") appeals his conviction and sentence for aiding and
abetting the possession of ephedrine with the intent to manufacture methamphetamine
in violation of 21 U.S.C. § 841(d)(1). Ruth Potts ("Potts") appeals her sentence after
pleading guilty to aiding and abetting the possession of methamphetamine in
violation of 21 U.S.C. § 841(d)(1). The district court2 sentenced Howard to forty-five
months in prison, and sentenced Potts to twenty-eight months in prison. We have
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm.
I. FACTS
At approximately 11:30 p.m. on January 16, 1996, detectives from the Jackson
County Drug Task Force drove with a confidential informant past Potts' trailer. The
detectives observed Howard's pickup truck parked in front of the trailer. The
detectives dropped off the informant, and returned to the trailer shortly after midnight.
The truck was still parked outside when they returned. Approximately one hour later,
Howard exited the trailer and drove away in his truck. The detectives followed
Howard and called for the Independence Police to make a traffic stop. A police
officer stopped Howard a short time later.
1
The Honorable Cynthia Holcomb Hall, United States Circuit Judge for the
Ninth Circuit, sitting by designation.
2
The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
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While frisking Howard, the officer found over $5500 in cash and a syringe in
Howard's shirt pocket. Howard consented to a search of his truck, where officers
found a loaded .45 caliber handgun under the driver's seat, a second syringe, a glass
pipe with residue on it, and a cellular phone. Howard was arrested. Officers
continued to search the truck, and found in a tool box black tubes and a plastic bag,
both containing white powder. The powder in the bag was moist and smelled of
solvent. When officers asked Howard what was in the tubes, he first stated that they
contained "bunk," but later said they contained ephedrine. Lab tests on the powder
showed that it was a binding agent that contained trace amounts of ephedrine.
At approximately 2:00 a.m. on January 17, 1996, police officers executed a
search warrant for Potts' trailer. Inside the trailer, officers found Potts and two other
individuals, Maasen and Hickerson. Potts' clothing was covered in white powder.
In addition, officers found in the bedroom and bathroom numerous plastic, glass, and
metal containers filled with white powder. Officers also found in the bedroom a
coffee filter that contained methamphetamine residue, and found in the bathroom
unused coffee filters. The bathroom sink also contained a white powder residue. The
powder in the trailer was damp, and the trailer smelled of solvent. The powder was
later determined to be ephedrine. Officers found in Potts' address book two numbers
listed for Howard. In addition, officers found a .44 caliber pistol with ammunition
lying nearby on the floor of Potts' bedroom. Potts stated that neither Maasen nor
Hickerson had been in the bedroom, and Maasen and Hickerson stated that they had
not left the kitchen or living room areas of the trailer.
Howard and Potts were charged with aiding and abetting the possession of
ephedrine with the intent to manufacture methamphetamine in violation of 21 U.S.C.
§ 841(d)(1). Potts pled guilty, and Howard went to trial. At trial, a DEA agent, who
took part in the execution of the search warrant and was qualified as an expert witness
based on his investigations of over 300 methamphetamine labs, testified that in his
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opinion Potts' trailer had been used to extract ephedrine from cold tablets.3 In
addition, another of the government's expert witnesses testified that it was probable
that the white powder found in Howard's truck was the waste product from the cold
tablets processed in Potts' trailer. Howard was convicted, and filed a motion for a
new trial or, in the alternative, judgment of acquittal. The district court denied
Howard's motion. At sentencing, the district court enhanced both Howard's and Potts'
sentences for possession of a dangerous weapon under U.S.S.G. § 2D1.1. Howard
and Potts timely appealed.
II. DISCUSSION
A. Sufficiency of the Evidence
Howard contends that the district court erred by denying his motion for
judgment of acquittal because there was insufficient evidence to support his
conviction. We will reverse the district court's denial of Howard's motion for
judgment of acquittal only if, viewing the evidence in the light most favorable to the
verdict and accepting as established all reasonable inferences that support the verdict,
no reasonable jury could have found Howard guilty beyond a reasonable doubt. See
United States v. Barrett, 74 F.3d 167, 168 (8th Cir. 1996); United States v. Ireland,
62 F.3d 227, 230 (8th Cir. 1995). The government introduced overwhelming
evidence that Howard aided and abetted the possession of ephedrine with intent to
produce methamphetamine.
Howard's truck was parked in front of Potts' trailer for at least an hour and a
half before he was seen leaving the trailer in his truck. Officers found in Howard's
3
Through the ephedrine reduction process, ephedrine is separated from cold
tablets by combining cold tablets with a chemical solvent and then running the
mixture through a filter. Coffee filters are commonly used.
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truck over 5700 grams of moist, solvent-smelling white powder that contained trace
amounts of ephedrine, a key ingredient for manufacturing methamphetamine.
Howard told detectives that the white powder found in his truck was ephedrine. Both
the white powder in Howard's truck and the white powder in Potts' trailer were moist
and smelled of solvent. The government's expert testified that the 400 grams of
ephedrine recovered from Potts' trailer could have produced 135 grams of
methamphetamine. Cf. United States v. Parker, 32 F.3d 395, 402 (8th Cir. 1994)
(allowing inference of intent to distribute from large quantity of methamphetamine).
The government's expert witnesses testified that the binding agent in Howard's truck
was probably the waste product from the ephedrine reduction process that was used
to extract from cold tablets the ephedrine found in Potts' trailer. Howard was arrested
with a loaded gun under his seat, a cell phone in his truck, over $5500 cash and a
syringe in his shirt pocket, a second syringe on the floor of his truck, and a glass pipe
with residue on it. Cf. United States v. Dawson, 128 F.3d 675, 677 (8th Cir. 1997)
(allowing inference of intent to distribute from presence of firearm); United States v.
Delpit, 94 F.3d 1134, 1153 (8th Cir. 1996) (allowing inference of intent to distribute
from "presence of cash, drug paraphernalia, firearms, and other evidence of drug-
dealing"). Officers found in Potts' trailer a coffee filter that tested positive for
methamphetamine. In addition, an individual had gone to the trailer specifically to
buy methamphetamine. Finally, Howard's name was listed twice in Potts' address
book. Based on the overwhelming evidence of Howard's guilt, we affirm the district
court's denial of Howard's motion for judgment of acquittal.
B. Admission of Expert Testimony
Howard next contends that the district court erred by allowing the government's
expert witness to testify that the white powder found in Howard's truck was probably
the waste product from the ephedrine reduction process performed in Potts' trailer.
We will reverse the district court's decision to admit this testimony only if the district
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court abused its discretion. See United States v. Roulette, 75 F.3d 418, 423 (8th Cir.),
cert. denied, 117 S. Ct. 147 (1996).
The government's expert testified that cold tablets come in a variety of sizes
and weights, and that they contain varying concentrations of ephedrine. Based on the
amount of ephedrine recovered from Potts' trailer (almost 400 grams) and the amount
of binding agent found in Howard's truck (over 5700 grams), the expert concluded
that, using a variety of cold tablets, the ephedrine found in Potts' trailer "could have
come from and probably did come from" the moist, solvent-smelling powder
containing trace amounts of ephedrine that was recovered from Howard's truck. The
expert was not required to know the specific brand and type of cold tablets used in
the ephedrine reduction process to reach his conclusion. It was enough that the expert
knew the percentage of ephedrine contained in the cold tablets that he used in his
calculations. The district court therefore did not abuse its discretion. Because the
expert's testimony was properly admitted, Howard's due process rights could not have
been violated by the admission of that testimony.
C. Dangerous Weapon Sentencing Enhancement
Howard and Potts both contend that the district court erred by enhancing their
sentences under U.S.S.G. § 2D1.1 for possession of a dangerous weapon. We will
reverse the district court's dangerous weapons enhancement only if the district court
clearly erred in finding that the .45 caliber handgun found under the driver's seat of
Howard's pickup truck and the .44 caliber pistol found on the floor of Potts' bedroom
were sufficiently connected to the offense. See United States v. Vaughn, 111 F.3d
610, 616 (8th Cir. 1997) (citing United States v. Betz, 82 F.3d 205, 210 (8th Cir.
1996)). The district court did not err because the government satisfied its burden to
show "that a dangerous weapon was present and that it was not clearly improbable
that the weapon had a nexus with the criminal activity." See Betz, 82 F.3d at 210.
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With respect to Howard, the government showed that a loaded .45 caliber
handgun was present in Howard's pickup truck under the driver's seat in which
Howard was sitting. See id. at 211 (affirming dangerous weapon enhancement where
weapon was readily accessible and loaded). Howard was using the truck to dispose
of the waste product from the ephedrine reduction process that had been conducted
to extract from cold tablets the ephedrine that was to be used to manufacture
methamphetamine. Howard's reliance on United States v. Khang, 904 F.2d 1219 (8th
Cir. 1990), is misplaced. In contrast to the government's stipulation in Khang that the
weapon found with the drugs was unrelated to the crime, id. at 1220-21, the
government here has not conceded that the weapon is unrelated to the crime. See
United States v. Richmond, 37 F.3d 418, 420 (8th Cir. 1994) (distinguishing Khang
on basis of government's stipulation). Similarly, Howard's reliance on United States
v. Shields, 44 F.3d 673 (8th Cir. 1995), is misplaced. In contrast to Shields, in which
the dangerous weapon was found during a search conducted over a month after the
crime was committed, thereby making it impossible to know if the gun had any
connection with the illegal activity, id. at 674, here the weapon was found
simultaneously with the commission of the crime and the arrest. The district court
therefore did not err by concluding that the weapon had a nexus to the crime.
With respect to Potts, the government showed that the .44 caliber pistol was
present in Potts' bedroom. The gun was found on the floor next to ammunition and
amid ephedrine and methamphetamine. See id. (sufficient if weapon readily
accessible and ammunition nearby). Like Howard, Potts misses the mark by relying
on Khang and Shields. In addition, Potts claims that the district court erred because
the gun belonged to Maasen. However, the district court did not clearly err in
applying the weapon enhancement to Potts because she stated that Maasen and
Hickerson had not entered her bedroom the night the trailer was searched, and
Maasen and Hickerson stated that they had remained in the kitchen and living room
that night. The district court therefore did not err by concluding that the weapon had
a sufficient nexus to the crime.
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III. CONCLUSION
Based on the foregoing, we affirm the judgment of the district court.
AFFIRMED.
A true copy.
ATTEST:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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