208 F.3d 1190 (10th Cir. 2000), 99-8001, United StatesA v Humphrey

Docket Nº:99-8001, 99-8002
Citation:208 F.3d 1190
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CARLTON HUMPHREY;NANCY REGAN, Defendants-Appellants.
Case Date:April 04, 2000
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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208 F.3d 1190 (10th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

CARLTON HUMPHREY;NANCY REGAN, Defendants-Appellants.

Nos. 99-8001, 99-8002

United States Court of Appeals, Tenth Circuit

April 4, 2000

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WYOMING (D.C. Nos. 97 CR-104-01-D & 97-CR-104-02-D)

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David A. Kubichek, Assistant United States Attorney (David D. Freudenthal, United States Attorney, with him on the brief), Casper, Wyoming, for Plaintiff-Appellee.

Peter J. Young, Schwartz, Bon, Walker & Studer, Casper, Wyoming, for Defendant-Appellant Humphrey, and G. Mark Garrison, Cody, Wyoming, for Defendant-Appellant Regan.

Before LUCERO, HOLLOWAY and MURPHY, Circuit Judges.

HOLLOWAY, Circuit Judge.

Defendants/Appellants Carlton Humphrey and Nancy Regan were jointly indicted on one count of conspiracy to possess methamphetamine with intent to distribute, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 846, and one count of possession of methamphetamine with intent to distribute (and aiding and abetting the same), 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 18 U.S.C. § 2. After trial together, both were convicted on both of those counts. The jury reconvened later and returned a verdict for the government on a forfeiture count, which does not concern us on this appeal. Each defendant filed a timely notice of appeal. We will consider the appeals together because there are several common issues.

I

A

The following summary of the trial evidence is, for the most part, taken in the light most favorable to the jury verdicts; at times, however, points raised by the defense will be mentioned to provide context for the analysis which follows, even though the jury was not convinced by the defense evidence.

In the spring of 1997, Alvin Bauerlein was terminally ill with cancer. Mr. Bauerlein lived on Jefferson Street in Casper, Wyoming, with his then fourteen year old daughter, Judith. Nancy Regan also lived in his home, where she took care of Mr. Bauerlein and did cooking and housekeeping. Carlton Humphrey, a friend of Regan, stayed at the house at times and was a frequent visitor. One Yno Martin, a friend of Judith, also lived in the house for a few months in the summer of 1997, staying in the basement with Judith. Patricia Harris (later Patricia Bauerlein), known as Patty, became acquainted with Alvin Bauerlein through a cancer support group. Patty also eventually came to stay in the house on Jefferson Street.

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In late May of 1997, Mr. Bauerlein was gravely ill and in the hospital. On May 29 Alvin and Patty were married in the hospital room. Patty then moved into the house on Jefferson Street, where she lived for a few weeks. Alvin Bauerlein died five days after the marriage. A few days after that, Regan was appointed Judith's guardian.

Judith Bauerlein had begun using methamphetamine in January or February, 1997. Testifying for the prosecution at trial, Judith said that she had been dealing methamphetamine during 1997, often having several thousand dollars in cash or several ounces of methamphetamine at a time. In mid-August, 1997 Judith was arrested and confined in a juvenile facility. Sometime in August Patty Bauerlein contacted Chuck Davis, who was an investigator with the Natrona County Sheriff's Department. Patty asked Davis to meet her at her mother's residence, where she had been living since late July, and he did so. Patty told Davis that Defendants Regan and Humphrey were dealing methamphetamine and that she wanted to put a stop to it because they were involving Judith in their activities. Patty continued to contact Davis about once a week for the following few weeks.

In late August, 1997 Patty contacted Davis with a specific tip. She said that Humphrey and Regan were going to Cheyenne to make a drug buy and gave a particular location where she believed they could be found. Officers in Cheyenne were unable to locate the Defendants that day, and Patty testified that she later learned that Defendants had gone to Denver instead of Cheyenne that day. On September 5 Patty again called Davis and reported that Humphrey had a large amount of methamphetamine in his possession and was in Casper, probably driving a green pickup. Officers were unable to find Humphrey that night.

On the morning of September 6, 1997 Patty called Davis again. She said that she and Judith were to meet Humphrey and Regan for breakfast at the Flying J truck stop in Casper. Several officers gathered near the truck stop and spotted Defendants leaving in Humphrey's green pickup. By this time, the police had determined that the pickup was registered to Humphrey, that he was driving under suspension, and that there was an outstanding warrant for his arrest. Police stopped the pickup with Humphrey and Regan in it after it left the truck stop. As the pickup was slowing down and pulling over, police saw defendant Regan ducking down and moving as if she were moving something on the floorboard of the pickup. When Humphrey produced his identification he was arrested on the outstanding warrant. He was handcuffed and placed in a patrol car. The officers searched Humphrey's pockets and found $3,492 in cash, as well as a money order for $500.

While Humphrey was being arrested and searched, another officer asked Regan to get out of the pickup and talked with her. In the meantime, other officers found a tan satchel in the floor of the pickup on the passenger side. Opening the satchel, they found two large bags containing what they believed to be, and what was later proven to be, methamphetamine totaling over 600 grams. Regan was then arrested. Subsequent search revealed a small quantity of methamphetamine, about 3 grams, in her purse (the first purse). She had only a small amount of cash. The pickup was impounded and taken to the police station, where it was thoroughly searched. Small additional amounts of drugs were found, along with some drug paraphernalia.

Patty had also told Davis that Humphrey had left his Dodge automobile in the garage at Patty's mother's house, where she was staying. Immediately after the arrest of the Defendants, the officers sought a search warrant for the Dodge. Patty, Judith, and Yno Martin had witnessed the arrests. They went from there to Patty's mother's house, where they destroyed small amounts of drugs, and Judith removed some photos from the

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Dodge. About forty-five minutes later, officers arrived to secure the location pending issuance of the requested search warrant.

The warrant was issued and the Dodge was searched later that day. The trunk of the car contained, inter alia, another $4,000 in cash, a loaded pistol, and a notebook with handwritten numbers and notations. The notebook was admitted in evidence at trial, and was said in expert testimony to be a drug ledger. Patty Bauerlein identified the handwriting in the notebook as that of Defendant Regan. In addition to searching the car, the police looked through some items that Patty had identified as belongings of the defendants; nothing incriminating was found in these items.

About a month later, Patty called Davis to report that she had found something which might be evidence in the case. Davis went to Patty's residence and she gave him a purse which she said belonged to Nancy Regan (the second purse). The second purse contained documents which were admitted at trial and, like the notebook found in the trunk of the Dodge, identified as records of drug transactions. Davis testified that he was no longer working on the case at that point and that he took the purse back to his office and forgot about it. The purse remained in or on his desk for several weeks, perhaps as long as two months, before he notified anyone else that he had obtained it. The purse was later opened and the documents already described were found.1

B

Defendants filed motions to suppress the documents found in the second purse, and Humphrey also moved to suppress all evidence seized at the time of his arrest. Defendants argued that the seizures violated their Fourth Amendment rights. The district court denied the motions and these rulings premise several arguments we consider in Part III, infra.

A first attempt to try Humphrey and Regan was aborted when during voir dire one of the prospective jurors made a remark about Humphrey's reputation in front of all the panel. A new trial was granted. Defendants were convicted in that trial.

II

The Defendants present several claims of error as grounds for reversal and a new trial. One of the most troubling is their assertion of juror misconduct and prejudicial taint of the jury. About three months after trial, Defendants asked the judge to investigate an allegation of juror misconduct. Regan's lawyer had heard, indirectly, that one of the jurors had said that another juror had brought up something about Humphrey's reputation during deliberations. The attorney was eventually able to contact the first juror, whom we will refer to as Juror #1, who gave him essentially the same information that the attorney had first received.2

At that point, the attorney notified the court by a May 12, 1998 letter and an investigation of the allegation by the judge began. See n.4, infra. At the first of two hearings to investigate these allegations on June 30, 1998 Juror #1 testified that Juror #2 said, "Oh, my God, I live in Douglas, and I even know the Humphreys' reputation."3 After hearing Juror #1's

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testimony the judge remarked that according to his memory, there had been only one juror from the town...

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