United States v. Harold R. Barnes

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 97-2836
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
Harold R. Barnes, *
* [PUBLISHED]
Appellant. *
___________
Submitted: November 28, 1997
Filed: March 23, 1998
___________
Before McMILLIAN, FLOYD R. GIBSON, and BEAM, Circuit Judges.
___________
PER CURIAM.
Harold Barnes appeals his convictions for various drug trafficking and weapons
offenses. We affirm.
I. BACKGROUND
Barnes was charged with conspiracy to manufacture and distribute
methamphetamine, manufacture of methamphetamine, possession with intent to
manufacture methamphetamine and carrying firearms in relation to a drug trafficking
offense. He entered a plea of not guilty to the offenses and was tried by a jury and
convicted on all counts. On appeal, Barnes asserts error in the admission of evidence
of his flight from law enforcement officers; error in certain jury instructions; and
insufficient evidence to support his convictions on the firearms counts and the
possession with intent to distribute methamphetamine count.1
II. DISCUSSION
A. Evidence
A district court has broad discretion in ruling on the admissibility of proffered
evidence. See Dillon v. Nissan Motor Co., 986 F.2d 263, 270 (8th Cir. 1993).
Accordingly, we will not disturb a district court's evidentiary ruling absent a clear and
prejudicial abuse of that discretion. See id. Evidence of flight or escape is admissible
and has probative value as evidence of consciousness of guilt. See United States v.
Hankins, 931 F.2d 1256, 1261 (8th Cir. 1991). Here, Barnes had fled from law
enforcement officers after discovery of his methamphetamine manufacturing lab. The
evidence shows that he continued to manufacture methamphetamine during the time he
eluded law enforcement. Under the circumstances, we find no abuse of discretion.
B. Jury Instructions
A district court has considerable discretion in charging the jury. See Kansas
City Power & Light Co. v. Ford Motor Credit Co., 995 F.2d 1422, 1432 (8th Cir.
1993). Accordingly, when reviewing a claim of instructional error, we consider the
instructions in their entirety and determine whether, when read as a whole, the charge
1
Barnes has submitted several essentially incomprehensible pro se briefs and a
"Private Demand for Bill of Particulars." We have reviewed those filings and find that
they are not germane to this proceeding. His assertions are not properly advanced in
the direct appeal of a criminal conviction.
-2-
fairly and adequately submits the issues to the jury. See Farmland Indus., Inc. v.
Morrison-Quirk Grain Corp., 987 F.2d 1335, 1341 (8th Cir. 1993).
Barnes first argues that the district court effectively enlarged the indictment
because Jury Instruction 28 stated that Barnes could be convicted of the firearms
conviction if the jury found that Barnes "knowingly carried a firearm," although the
indictment charged Barnes with "knowingly and willfully us[ing] and carry[ing] a
firearm" during and in relation to the drug offenses. We reject this argument. Proof of
any one of the violations charged conjunctively in the indictment will generally sustain
a conviction. See United States v. Vickerage, 921 F.2d 143, 147 (8th Cir. 1990). The
evidence supported an instruction on the "carry" prong rather than the "use" prong. See
Bailey v. United States, 516 U.S. 137 (1995) (holding that a conviction under "use" prong
requires active employment of the weapon).
Barnes next argues that the district court erred in Jury Instructions 25 and 28 by
defining "carry" as synonymous with "possess." The district court instructed that "the
phrase 'carried a firearm' means that the firearm was transported or moved from one
location to another and that the firearm was on the person of the defendant, or within his
immediate reach." We find that the instructions fairly and adequately informed the jury.
The definition of "carries" submitted by the district court is consistent with our case law.
See, e.g., United States v. Barry, 98 F.3d 373, 377 (8th Cir. 1996) (finding that
transporting guns and drugs in the passenger compartment of a car is sufficient), cert.
denied, 117 S. Ct. 1014 (1997).
C. Sufficiency of the Evidence
Barnes also asserts that the evidence was insufficient to convict him on the
firearms counts and the possession with intent to distribute count. This court will reverse
a conviction for insufficient evidence only when we conclude that no reasonable juror
could find guilt beyond a reasonable doubt. See United States v. Behr,
-3-
33 F.3d 1033, 1035 (8th Cir. 1994). We must review the evidence in the light most
favorable to the government and accept all reasonable inferences supporting the verdict.
See id.
We have reviewed the record and find sufficient evidence to support the
convictions on the firearms counts. At the time he was arrested, Barnes had both
methamphetamine and a Ruger 9mm semi-automatic pistol in the passenger compartment
of his car. Teresa Vaughn testified that she observed him carrying a gun. She further
testified that he carried a .22 caliber with him and had it on him most of the time. Mesha
O'Neil also testified that she had seen Barnes carry a gun and identified an Intratec .22
as the gun she had seen him carry. Teresa Vaughn also testified that Barnes
manufactured methamphetamine almost every day, twenty-four hours a day. There is
more than sufficient evidence for the jury to find that Barnes carried a gun during and in
relation to a drug trafficking offense.
We similarly find sufficient evidence to support Barnes's conviction on the
possession with intent to distribute methamphetamine count. The evidence shows that
Barnes possessed methamphetamine on July 10, 1996. Although Barnes was arrested in
actual possession of only a small amount of methamphetamine, the evidence shows that
Barnes led a large-scale conspiracy to manufacture and distribute methamphetamine. See
United States v. Buford, 108 F.3d 151, 154 (8th Cir. 1997). He also possessed a triple-
beam scale that is used in the weighing and distribution of narcotics. We find the direct
and circumstantial evidence more than sufficient to support Barnes's conviction on this
count.
III. CONCLUSION
We affirm the conviction and sentence of Barnes in all respects.
-4-
A true copy.
ATTEST:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-5-