13 F.3d 340 (10th Cir. 1993), 93-3087, United States v. Fitzherbert

Docket Nº:93-3087, 93-3016.
Citation:13 F.3d 340
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Edward Leo FITZHERBERT, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Dean Todd FITZHERBERT, Defendant-Appellant.
Case Date:December 22, 1993
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 340

13 F.3d 340 (10th Cir. 1993)

UNITED STATES of America, Plaintiff-Appellee,


Edward Leo FITZHERBERT, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,


Dean Todd FITZHERBERT, Defendant-Appellant.

Nos. 93-3087, 93-3016.

United States Court of Appeals, Tenth Circuit

December 22, 1993

Page 341

Marilyn M. Trubey, Branch Chief, Federal Public Defender's Office, Topeka, KS (Charles D. Anderson, Federal Public Defender, Topeka, KS, with her on the brief), for defendant-appellant Edward Leo Fitzherbert.

David C. Voss, Topeka, KS, for defendant-appellant Dean Todd Fitzherbert.

Gregory Hough, Asst. U.S. Atty., Topeka, KS (Jackie N. Williams, U.S. Atty., Thomas G. Luedke, Asst. U.S. Atty., Topeka, KS, with him on the briefs), for plaintiff-appellee.

Before: LOGAN, FEINBERG [*] and McWILLIAMS, Circuit Judges.

FEINBERG, Senior Circuit Judge:

Appellants Edward Leo Fitzherbert (Edward) and Dean Todd Fitzherbert (Dean) appeal from convictions entered in the United States District Court for the District of Kansas, Richard D. Rogers, J., for drug-related offenses, all stemming from an indoor marijuana growing operation conducted in Kansas from December 1991 to May 1992. Edward is Dean's father and the lessee of the house in which the operation was conducted. Both Edward and Dean argue that the district court erred in allowing into evidence a videotape documenting a similar indoor marijuana growing operation in Maine in late 1990. In addition, both appellants raise sentencing issues: Edward claims that the district court erred in denying him a downward departure for substantial assistance to the government, and Dean claims

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that the district court should not have applied a two-level enhancement for obstruction of justice. For the reasons given below, we affirm in all respects.

I. Background

  1. Discovery of the growing operation

    In December 1991, appellants Edward and Dean, Edward's wife Christina, Dean's two adolescent brothers named Chad and Paul, and four small children moved from the state of Maine to Lyndon, Kansas. Lyndon is a small town with a population of approximately 900. The family attracted some attention in the community because it appeared to have plenty of money even though no family member seemed to have a job. The family attracted further attention because of a February 1992 conversation between Edward and Lyndon Police Chief Ryan Patrick Smith, during which Edward expressed unusual interest in the procedures of the Lyndon Police Department. Chief Smith became suspicious and decided to contact other law enforcement authorities. As a result, Chief Smith learned that a county drug enforcement unit was interested in a suspect who fit Edward's physical description. This led to several investigations of the Fitzherberts' trash, which produced evidence of drug-related activities and provided sufficient basis to obtain a search warrant.

    In early May 1992, a search of the Fitzherbert residence was jointly executed by the Kansas Bureau of Investigation, the local county sheriff's department and the Lyndon police. This search yielded approximately 190 marijuana plants growing indoors, marijuana seeds in various stages of germination, a variety of marijuana-related paraphernalia and several firearms. The search also uncovered several photographs of the defendants in the presence of marijuana and a videotape taken in the Fitzherberts' prior residence in Maine. The videotape documented a substantial indoor marijuana growing operation at that residence.

  2. Proceedings in the district court

    In July 1992, a grand jury indicted both Fitzherberts, charging Edward in six counts and Dean in two counts with various drug-related offenses. A few months later, both Fitzherberts moved in limine to exclude the Maine videotape from evidence. The judge denied the motion. In November 1992, pursuant to a plea agreement, Edward pleaded guilty to one count of conspiracy to manufacture with intent to distribute approximately 190 marijuana plants in violation of 21 U.S.C. Sec. 846 and one count of possession of a firearm during a drug-trafficking offense in violation of 18 U.S.C. Sec. 924(c). Under the plea bargain, the government agreed to dismiss the remaining four counts of the indictment, and to make a...

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