USA v. Morrison
| Decision Date | 28 March 2000 |
| Docket Number | No. 99-3148,99-3148 |
| Citation | 207 F.3d 962 |
| Parties | (7th Cir. 2000) United States of America, Plaintiff-Appellee, v. Ricky Morrison, Defendant-Appellant |
| Court | U.S. Court of Appeals — Seventh Circuit |
Appeal from the United States District Court for the Central District of Illinois, Springfield Division. No. 98 CR 30065--Jeanne E. Scott, Judge.
Before Posner, Chief Judge, and Manion and Kanne, Circuit Judges.
Ricky Morrison was convicted in district court of manufacturing methamphetamine. On appeal, he claims that the government failed to produce sufficient evidence to sustain the conviction and that the district court improperly attributed too much methamphetamine to him for purposes of establishing relevant conduct under the Sentencing Guidelines. We affirm Morrison's conviction, but we vacate the sentence imposed and remand the case to the district court for resentencing.
On August 30, 1998, Officer Robert Power of the Quincy, Illinois, Police Department responded to a complaint of a strong odor emanating from a home. Arriving at about 11:15 p.m., Power smelled an overwhelming odor of ether coming from an exhaust fan located in an upstairs window of the home where Ricky Morrison resided. Ether is one of the many precursor chemicals used in the ephedrine reduction method of producing methamphetamine. Power, who was assigned to the anti-drug West Central Illinois Task Force and had been trained in investigating clandestine methamphetamine laboratories, suspected that Morrison was processing methamphetamine at his home.
Power notified his supervisors of his suspicions, and they decided that he should maintain surveillance while Morrison remained in the residence. Shortly thereafter, a vehicle left Morrison's home, and Power followed. Power stopped the car and interviewed the driver, Deanna Vahle. Power found no items associated with the production of methamphetamine in Vahle's vehicle, so he let Vahle go and returned to watching the house. Later, another car left from the residence. Power also followed and stopped this car. He interviewed the driver, Heather Gilker, but found nothing associated with the production of methamphetamine in her car. Power then returned to the stake-out of Morrison's residence.
About 1:20 a.m., Power spotted Morrison's truck leaving the house. Instead of immediately following himself, Power contacted Officer Lee Mangold, and requested that Mangold make a traffic stop. Fortuitously, Morrison failed to stop at a stop sign, and Mangold attempted to stop Morrison's truck. Morrison initially refused to stop and drove an additional one and one-half blocks before pulling over. During this short police chase, police officers detected the odor of ether coming from Morrison's truck. When the truck stopped, Power, accompanied by Sergeant Glenn Schwartz, brought their squad car alongside Morrison's truck. At this point, both men saw Morrison throw a white object from his vehicle. The white object turned out to be a twist-off bottle cap, which matched a twenty- ounce Mountain Dew bottle that police found half a block away. The white twist-off cap smelled of ether, and the Mountain Dew bottle contained a liquid which field-tested positive for the presence of methamphetamine.
After performing the field test, Power searched Morrison's truck and found a large wet area on the outside of the truck, located directly beneath the driver's side window. The wet area smelled like ether, and the liquid that created the wet spot also tested positive for methamphetamine. During his search of the truck, Power also found a receipt from Home Depot Crossroads dated August 30, 1998. The receipt showed that Morrison had purchased a screw set, a plunger and a bottle of drain opener. The primary ingredient of drain opener is sulfuric acid, another precursor chemical used in the production of methamphetamine.
After obtaining a search warrant, members of the Quincy police and the West Central Illinois Task Force, including Power, searched Morrison's residence. In the laundry room of the house, police found an empty Igloo container from which emanated the smell of anhydrous ammonia, otherwise known as liquid nitrogen, another precursor chemical. Liquid nitrogen is a crop fertilizer used in farming; it produces a noxious odor and may be toxic if inhaled. The lid to the container was found in the upstairs bathroom, the same room where the exhaust fan, from which Power had initially smelled ether, was located. In the bathroom, Power now smelled hydrogen chloride gas, which he determined arose from the sink and the bathtub. Power associated this scent with the production of methamphetamine because he knew that in the methamphetamine production process, salt and sulfuric acid are mixed to produce hydrogen chloride gas, which is used to crystallize liquid methamphetamine. The search produced no other evidence of precursor chemicals or other evidence of methamphetamine production on the premises or in Morrison's garbage.
Morrison was arrested and subsequently indicted on a single count of manufacturing a controlled substance. At trial, the government offered the eyewitness testimony of Power, Mangold and Schwartz. The government also offered the testimony of Officer Ronald Hanlin, who participated in the surveillance operation and the subsequent search of Morrison's residence, DEA Special Agent Anthony Grootens, who offered expert testimony about the methamphetamine production process, and Timothy C. Anderson, a forensic chemist who described the procedure that the government claimed Morrison used to manufacture methamphetamine. Anderson also had performed the chemical evaluation of the liquid found in the Mountain Dew bottle, and he testified that the liquid in the bottle contained 2.6 grams of methamphetamine, as well as pseudoephedrine and various other solvent compounds and by-products.
The government also proffered the testimony of two other witnesses, Tammy Kaltenbach and Michael Childress. They would have testified as to Morrison's character using evidence of other crimes under Rule 404(b) of the Federal Rules of Evidence. During the government's offer of proof, Kaltenbach admitted that her methamphetamine addiction left her in a "haze," and she was unable to remember exact dates and specific occurrences. The district court found that Kaltenbach appeared confused and lacked credibility, so it refused to allow her testimony into evidence. The district court granted permission for Childress to testify, but the government chose not to call him. The government called no further witnesses, and the defense rested without presenting any evidence. The jury found Morrison guilty of manufacturing methamphetamine.
Although the evidence at trial concerned only the 2.6 grams of methamphetamine found in the bottle, the Presentence Investigation Report ("PSR") attributed an additional 409.35 grams of methamphetamine to Morrison on the basis of other relevant conduct. The probation office based its assessment of this relevant conduct calculation on facts obtained from interviews with seven witnesses, each of whom had engaged in at least one methamphetamine "cook" with Morrison in 1998. The original computation attributed 132 grams of methamphetamine based on the statement of Craig Schnelle, 132 grams of methamphetamine based on the statement of Harold Hills, 5.5 grams based on the statements of Kaltenbach and Kim Perkins, 69 grams of methamphetamine based on the statement of Stanley Brown and 70.85 grams of methamphetamine based on the statement of Monte Beaston. Beaston's statement also corroborated Hills's and Schnelle's statements, and the statement of Michelle Lasby also corroborated Schnelle's statement. In addition, both Kaltenbach and Adam Ransdell said they purchased methamphetamine regularly during the summer of 1998 from Morrison, but no relevant conduct was attributed to these statements for fear of double-counting.
At the sentencing hearing, the government conceded that the PSR overstated the amount of methamphetamine to be attributed on the basis of Hills's statement. Instead of 132 grams, the government only requested that the court include 85 grams in its relevant conduct calculation. To establish the reliability of the facts on which the PSR was based, the government called two witnesses, Grootens and Illinois State Police Officer Pat Frazier, a task force member. Grootens stated that he had read the interview reports on which the PSR was based and that he found the reports to be consistent with the ephedrine reduction process of manufacturing methamphetamine. Frazier testified that he conducted an interview with Schnelle, who again confirmed the information included in his statement, and Fraizer verified that the 132 grams of methamphetamine attributed as relevant conduct was a conservative estimate. Morrison presented no witnesses or evidence to contradict the evidence included in the PSR or the testimony of Grootens or Frazier.
The district court concluded that the contents of the PSR provided sufficient indicia of reliability and that the evidence established both a relevant course of conduct and a common plan or scheme. Although the court intended to exclude the 5.5 grams of methamphetamine attributed to the testimony of Kaltenbach, it mistakenly included this amount in its final calculation of drug quantity to be attributed on the basis of relevant conduct. Therefore, the court included an additional 362.35 grams (the 409.35 grams included in the PSR less the 47 grams attributed from Hills's statement that the prosecution admitted resulted from its miscalculation) of methamphetamine as relevant conduct for the purposes of calculating Morrison's sentence, raising the total drug quantity to 364.95 grams. For 2.6 grams of methamphetamine, Morrison's total offense level under Guideline sec. 2D1.1(a)(3) would have...
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