United States of America, Plaintiff-Appellee, v. Morgan Earl Windrix, Defendant-Appellant. United States of America, Plaintiff-Appellee v. David Alan Westcott, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Charles Arnold Mook, Defendant-Appellant., US.FEDERAL.ca10 (2005) - Case Law - VLEX 18489070

United States of America, Plaintiff-Appellee, v. Morgan Earl Windrix, Defendant-Appellant. United States of America, Plaintiff-Appellee v. David Alan Westcott, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Charles Arnold Mook, Defendant-Appellant., US.FEDERAL.ca10 (2005)

Docket Number:04-5016
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Kevin Danielson, Assistant United States Attorney (David E. O'Meilia, United States Attorney, with him on the briefs), Tulsa, OK, for Plaintiff-Appellee.

Art Fleak, Tulsa, OK, for Defendant-Appellant Westcott.

Shannon L. Henson, Assistant United States Attorney (David E. O'Meilia, United States Attorney, and Kevin Danielson, Assistant United States Attorney, on the briefs), Tulsa, Oklahoma, for Plaintiff-Appellee.

Stanley D. Monroe, Tulsa, Oklahoma, for Defendant-Appellant Mook.

Shannon L. Henson, Assistant United States Attorney (David E. O'Meilia, United States Attorney, and Kevin Danielson, Assistant United States Attorney, on the briefs), Tulsa, Oklahoma, for Plaintiff-Appellee.

Before BRISCOE, HOLLOWAY, and HARTZ, Circuit Judges.

HARTZ, Circuit Judge.

These consolidated cases arise from the trial of three participants in a conspiracy to manufacture and sell methamphetamine. Defendants Morgan Earl Windrix, Charles Arnold Mook, and David Alan Westcott were each convicted of conspiring to manufacture and distribute methamphetamine, 21 U.S.C. § 846, and possessing equipment and chemicals for methamphetamine manufacturing, 21 U.S.C. § 843(a)(6). Windrix, the conspiracy's leader, was further convicted on two counts of possessing methamphetamine with the intent to distribute, 21 U.S.C. § 843, and maintaining a drug house, 21 U.S.C. § 856(a)(1), (b); Mook was further convicted of being a felon in possession of a firearm and ammunition, 18 U.S.C. §§ 922(g)(1), 924(a)(2).

Each Defendant appeals the judgment on a number of grounds. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm the convictions but remand for resentencing in light of United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

I. Background

In July 1999 Windrix bought a fenced 10-acre hill property in Osage County, Oklahoma, on which he resided in a double-wide mobile home. Westcott, with his former wife Karen Heim, moved onto the property at Windrix's invitation, living in a single-wide mobile home. Mook, Windrix's nephew, occasionally lived on the hill, but also maintained houses on South Xanthus and North Garrison Place in Tulsa.

Between 1999 and 2002 Windrix, Westcott, Mook, and others manufactured and distributed methamphetamine using Windrix's hill as their base. Windrix arranged methamphetamine-manufacturing sessions (cooks) at least twice a week and supervised the procurement of ingredients for these cooks. Westcott assisted during the cooks, purchased and produced ingredients, and destroyed evidence of the cooks. Mook assisted during the cooks and kept methamphetamine, business records, firearms, and ammunition in his South Xanthus and North Garrison Place houses.

On appeal Windrix contends that (1) the district court incorrectly failed to suppress evidence discovered during a May 10, 2002, traffic stop; (2) the Government proved multiple conspiracies rather than the single conspiracy with which he was charged; and (3) the district court incorrectly applied the Sentencing Guidelines by miscalculating drug quantities and imposing upward adjustments for firearm possession and for leading a criminal group of five or more.

Westcott contends that (1) the district court incorrectly failed to suppress evidence discovered during a February 6, 2001, search of his mobile home on the hill; (2) the government proved multiple conspiracies rather than the charged conspiracy; (3) the district court abused its discretion by refusing to sever his trial from that of the other defendants; (4) the jury pool was not a fair cross-section of the community; (5) the district court misapplied the Sentencing Guidelines by attributing to him quantities of methamphetamine that flowed through the conspiracy but that he could not have reasonably been expected to foresee; and (6) the Government failed to prove for sentencing purposes that the quantities of methamphetamine attributed to him were pure methamphetamine rather than a mixture.

Mook contends that (1) the district court incorrectly failed to suppress evidence discovered in the February 6, 2001, search of the hill, the two September 23 searches of his residence, and the September 24 search of his storage lockers; (2) the Government proved multiple conspiracies rather than the single conspiracy with which it charged him; and (3) the district court incorrectly applied the Sentencing Guidelines by attributing to him quantities of methamphetamine that flowed through the conspiracy but that he could not have reasonably been expected to foresee.

All three also challenge their sentences under Booker.

II. Contested Searches and Seizures

Police officers conducted a number of searches during their investigation of the conspiracy. Defendants challenge several of them on appeal.

On February 6, 2001, officers executed a search warrant of the Windrix property. The search included both trailers (Windrix's and Westcott's) on the hill. Officers discovered methamphetamine, ingredients and equipment for preparing methamphetamine, marijuana, several firearms, video surveillance equipment, a ballistic vest, night-vision scopes, walkie-talkies, a radio scanner, and large amounts of currency.

On May 15, 2001, another warrant was executed, this time for Mook's South Xanthus house. Officers discovered marijuana, a firearm, scales, syringes, gloves, methamphetamine pipes, receipts for methamphetamine-manufacturing ingredients and equipment, and large amounts of currency. A year later officers obtained further evidence ? methamphetamine, ingredients, and a videotape of Windrix at a cook ? in a May 10, 2002, search of Windrix's car after a traffic stop.

This prolonged investigation resulted in a September 6, 2002, indictment charging Defendants with conspiracy. On September 23, relying in part on the indictment, officers obtained and executed a warrant to search Mook's North Garrison house for documentary evidence of the conspiracy, and, after a fruitful search, a second warrant to search the house for methamphetamine-manufacturing equipment and other nondocumentary evidence. The North Garrison searches yielded financial records, bottles, filters, scales, smoking devices, marijuana, firearms, ammunition, and large amounts of currency. During the first search, officers discovered a storage-locker receipt; they then obtained a warrant to search the storage locker, which they executed the following day. They found firearms, ammunition, paperwork, scales, glassware, plastic tubing, and a chemistry textbook.

We proceed to address the challenges to these searches. In reviewing the denial of a motion to suppress, we view the evidence in the light most favorable to the Government and accept the district court's factual findings unless they are clearly erroneous, but review the ultimate question of Fourth Amendment reasonableness de novo. See United States v. Kimoana, 383 F.3d 1215, 1220 (10th Cir.2004).

A. February 6, 2001, Search of Westcott's Home

In January 2001 police officers obtained a search warrant for the hill. The warrant authorized the search to encompass "the dwelling, all outbuildings, vehicles and persons which may be found thereat." After providing directions to the property and stating that one enters the property on a road passing "through two rock pillars and [a]cross a cattle guard," the warrant described the property as follows:

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