U.S. v. Fitzherbert

• Decision Date: 22 December 1993
• Docket Number: Nos. 93-3087,93-3016,s. 93-3087
• Citation: 13 F.3d 340
• Parties: 40 Fed. R. Evid. Serv. 147 UNITED STATES of America, Plaintiff-Appellee, v. Edward Leo FITZHERBERT, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Dean Todd FITZHERBERT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 340

13 F.3d 340

40 Fed. R. Evid. Serv. 147

UNITED STATES of America, Plaintiff-Appellee, v. Edward Leo FITZHERBERT, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Dean Todd FITZHERBERT, Defendant-Appellant.

Nos. 93-3087, 93-3016.

United States Court of Appeals, Tenth Circuit.

Dec. 22, 1993.

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 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

A. 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.

B. 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 motion for downward departure pursuant to U.S.S.G. Sec. 5K1.1 if Edward provided useful information relating to other offenders. Edward reserved the right to appeal from the district court's denial of his motion to exclude the videotape.

Dean's case proceeded to trial, and in late October 1992 he was convicted by a jury of 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 manufacturing with intent to distribute approximately 190 marijuana plants in violation of 21 U.S.C. Secs. 841(a)(1) and 841(b)(1)(B).

In January 1993, Dean received a sentence of 97 months on each count, to be served concurrently. In the course of sentencing Dean, the district judge imposed a two-level enhancement for obstruction of justice pursuant to U.S.S.G. Sec. 3C1.1. In February, despite the government's motion for a downward departure, Edward received a sentence within the guideline range; the judge imposed prison terms of 63 months for the conspiracy count and 60 months for the gun count, to run consecutively.

II. Discussion

In this court, both appellants argue that their convictions should be reversed because the district court erred in not excluding the Maine videotape. Also, Edward argues that the district court should have given him a downward departure after the government kept its part of the plea bargain by making a Sec. 5K1.1 motion, and Dean contends that the district court erred in enhancing his sentence solely because it found that Dean had committed perjury at trial.

A. Fed.R.Evid. 404(b)--The Videotape

Pursuant to Fed.R.Evid. 404(b), the district court admitted into evidence the videotape of the indoor marijuana growing operation conducted in Maine. Rule 404(b) provides, in relevant part:

Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan knowledge, identity, or absence of mistake or accident ...

We review the district court's decision to admit evidence of prior acts under Rule 404(b) for abuse of discretion. United States v. Poole, 929 F.2d 1476, 1479 (10th Cir.1991); United States v. Record, 873 F.2d 1363, 1373 (10th Cir.1989).

Dean argues that the videotape was improperly admitted because it was never established that he had participated in the Maine growing operation. According to Dean, the videotape does not actually show him in the growing room or participating in the planting, growing, or harvesting of the marijuana. Further, Dean testified that he did not live in the house during the Maine growing operation, although he did visit and was aware of it. Thus, Dean argues that "the government should have been made to show the defendant not only had knowledge that an operation was underway, but that he was an active participant."

In Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988), the Supreme Court set forth the criteria for admission of prior act evidence. In accordance with Huddleston, this Circuit has established the following four requirements for admission of evidence under Rule 404(b):

(1) the evidence must be offered for a proper purpose;

(2) the evidence must be relevant;

(3) the trial court must make a rule 403 determination of whether the probative value of the similar acts is substantially outweighed by its potential for unfair prejudice; and

(4) pursuant to Fed.R.Evid. 105, the trial court shall, upon request, instruct the jury that the evidence of similar acts is to be considered only for the proper purpose for which it was admitted.

United States v. Poole, 929 F.2d at 1481 (quoting United States v. Jefferson, 925 F.2d 1242, 1258 (10th Cir.), cert. denied, --- U.S. ----, ----, 112 S.Ct. 238, 239, 116 L.Ed.2d 194 (1991)). United States v. Record, 873 F.2d at 1374-75. See also Huddleston, 485 U.S. at 691-92, 108 S.Ct. at 1502. This court has "described the parameters of Rule 404(b) admission in an inclusive sense holding that 'it would allow admission of uncharged illegal acts unless the only purpose for their admission is to prove the criminal disposition of the defendant.' " United States v. Record, 873 F.2d at 1373 (quoting United States v. Nolan, 551 F.2d 266, 271 (10th Cir.), cert. denied, 434 U.S. 904, 98 S.Ct. 302, 54 L.Ed.2d 191 (1977)).

The record shows that these requirements were satisfied with respect to the videotape. First, the government offered the videotape for the proper purpose of showing knowledge, intent, and the presence of a common scheme or plan. Second, the jury (which saw Dean testify) could reasonably conclude from the totality of the evidence--including a still photograph of Dean in the Maine house with a large amount of marijuana and the presence on the videotape of a man who may have been Dean--that Dean was a participant in the Maine growing operation. Thus, the evidence was relevant. Third, while the district court did not expressly find that the videotape's probative value outweighed any unfair prejudice, the issue was argued before the court, and we are satisfied that "[b]y denying the motion to exclude the evidence, the court, in essence, rejected the defendant's prejudice argument." United States v. Fingado, 934 F.2d 1163, 1166 (10th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 320, 116 L.Ed.2d 262 (1991). Finally, the district court instructed the jury without objection on the limited purposes for which the videotape was introduced.

With regard to Edward, the argument for admitting...