230 F.3d 1224 (10th Cir. 2000), 98-3361, US v. Becker

Docket Nº:98-3361
Citation:230 F.3d 1224
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LESLEY LEE BECKER, also known as James Lee Becker, also known as James Allen, also known as (nfn) Lee, Defendant - Appellant.
Case Date:October 31, 2000
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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230 F.3d 1224 (10th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

LESLEY LEE BECKER, also known as James Lee Becker, also known as James Allen, also known as (nfn) Lee, Defendant - Appellant.

No. 98-3361

United States Court of Appeals, Tenth Circuit

October 31, 2000

Appeal from the United States District Court for the District of Kansas. (D.C. No. 97-CR-40101)

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Melody Evans, Assistant Federal Public Defender for the District of Kansas (David J. Phillips, Federal Public Defender, with her on the briefs), Topeka, Kansas, for the appellant.

Gregory G. Hough, Assistant United States Attorney (Jackie N. Williams, United States Attorney, with him on the brief), Topeka, Kansas, for the appellee.

Before BALDOCK, HENRY and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.

Appealing from both his conviction after trial and his sentence for various drug and firearms charges, defendant-appellant Lesley Lee Becker asserts as grounds for relief several evidentiary errors, insufficient evidence to support his methamphetamine-related convictions, and error in his sentencing. The principal assertions require us to further analyze two developing areas of law: the protection afforded by the Sixth Amendment Confrontation Clause against the admission of out-of-court statements of a non-testifying confidential informant offered to show why police sought a search warrant; and whether a prior search and subsequent drug convictions constituted inadmissible evidence of prior bad acts. Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we conclude that although hearsay testimony and evidence of prior bad acts should not have been admitted, any errors were harmless and we therefore affirm Becker's conviction and sentence.

I

On March 31, 1997, police searched Becker's residence pursuant to a warrant. During the search, police seized glassware, chemicals, a chemical company brochure, and other manufacturing materials consistent with the production of methamphetamine. Although methamphetamine was not discovered at the residence, methamphetamine residue was detected in a bottle, a zip-lock bag, and a mixing bowl. The police also seized two recipes for methamphetamine production, marijuana, numerous guns, and ammunition.

As a result of the evidence obtained during the search, Becker was indicted on five counts: (1) attempting to manufacture methamphetamine in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2; (2) managing and controlling a dwelling for the purpose of unlawfully manufacturing and storing methamphetamine in violation of 21 U.S.C. § 856(a)(2) and 18 U.S.C. § 2; (3) possessing with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; (4) possessing acetone with the intent to manufacture methamphetamine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; and (5) possessing firearms in and affecting commerce as a convicted felon in violation of 18 U.S.C. §§ 922(g) and 924(a)(2). A jury found Becker guilty on all counts. The district court sentenced him to concurrent sentences of 262 months imprisonment on Count 1, 240 months imprisonment on Counts 2 and 4, and 120 months imprisonment on Counts 3 and 5.

On appeal, Becker argues that hearsay from a confidential informant, profile evidence

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of a methamphetamine cook, and prior bad acts were erroneously admitted into evidence. Specifically, the jury heard from Officer Bruce Voigt, who testified that an unidentified, non-testifying confidential informant told him that Becker was selling methamphetamine and manufacturing hash oil and that this informant provided "true and reliable" information. (III R. at 196.) Becker objected to this testimony as hearsay and a violation of the Confrontation Clause. His motion in limine and contemporaneous objections were overruled. The jury also heard testimony from Agent Tom Walsh who, based on his training and experience, described the characteristics of a methamphetamine cook. Although Becker did not object to this evidence at trial, he now asserts it constitutes inadmissible profile evidence. As to prior bad acts, the district court overruled Becker's objection and admitted, pursuant to Fed. R. Evid. 404(b), evidence of Becker's prior convictions for conspiracy to possess methamphetamine and for failure to pay a drug tax, as well as evidence of a prior raid on his home during which police recovered items allegedly consistent with methamphetamine manufacturing.

In addition to these evidentiary claims, Becker argues the evidence was insufficient to support his methamphetamine-related convictions. As to his sentencing, he contends the district court's determination of drug quantity was erroneous. The district court rejected Becker's objections and adopted the findings and recommendations of the presentence report, concluding that Becker's methamphetamine lab capability, as it pertains to Count 1, was six pounds based on the amount of muriatic acid seized from his residence.

II

We review for abuse of discretion the district court's evidentiary rulings, considering the record as a whole.1 See United States v. Jones, 44 F.3d 860, 873 (10th Cir. 1995). Becker argues the district court abused its discretion when it admitted incriminating out-of-court statements by a non-testifying confidential informant, introduced through Officer Voigt's testimony, because the statements at issue were hearsay and violated the Confrontation Clause of the Sixth Amendment.

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. See Fed. R. Evid. 801(c). Testimony which is not offered to prove the truth of an out-of-court statement, but is offered instead for relevant context or background, is not considered hearsay. See United States v. Wilson, 107 F.3d 774, 781 (10th Cir. 1997); United States v. Freeman, 816 F.2d 558, 563 (10th Cir. 1987). "[O]ut-of-court statements by informants offered to explain the background of an investigation . . . must be evaluated under . . . Fed. R. Evid. [] 401 and 403 for relevance and to prevent confusion or prejudice." Freeman, 816 F.2d at 563 (citing United States v. Mancillas, 580 F.2d 1301, 1309-10 (7th Cir. 1978)). On hearsay issues, we accord heightened deference to the district court "because the determination of whether certain evidence is hearsay rests heavily upon the facts of the particular case." Wilson, 107 F.3d at 780.

The following testimony of Officer Voigt was elicited during government questioning:

Q. [W]hat information did the confidential informant give you that caused you to believe that there was something criminal at the Defendant's residence?

[DEFENSE COUNSEL]: Judge, we would raise our objection as previously mentioned for the record.

THE COURT: Overruled.

Q. Why did you what information did the [confidential informant]

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give you that caused you to seek the search warrant?

A. The informant told me that Becker was selling methamphetamine and was manufacturing hash oil. The informant also advised me that there were chemicals in one of the bedrooms which might be involved in a methamphetamine lab. The informant had never actually observed Becker manufacturing methamphetamine, though.

...

Q. What time period had the confidential informant been at the Becker residence?

A. For approximately two months prior to the execution of the search warrant.

Q. And when was the latest time prior to your application for the search warrant?

A. It would have been within 48 hours of March 28th.

(III R. at 197, 199). The government contends the statement was offered to show why Officer Voigt applied for the search warrant.

In United States v. Cass, 127 F.3d 1218 (10th Cir. 1997), we held that

an arresting or investigating officer should not be put in the false position of seeming just to have happened upon the scene and should be allowed some explanation of his or her presence and conduct. However, testimony that the officer acted "upon information received," or words to that effect, should be sufficient.

Id. at 1223 (quoting 2 McCormick on Evidence (4th ed.) § 249, at 104 (citations omitted)). "The government's identification of a relevant non-hearsay use for such evidence, however, is insufficient to justify its admission if the jury is likely to consider the statement for the truth of what was stated with significant resultant prejudice." Id. (quoting United States v. Forrester, 60 F.3d 52, 59 (2d Cir. 1995) (internal quotation omitted)).

Here, as in Cass, "the hearsay problem is exacerbated because the evidence the government presented to 'explain the course of its investigation' . . . go[es] to precisely the issue the government was required to prove." Id. Furthermore, the government bolstered the informant's credibility and invoked the informant's statements for the truth of the matter asserted. In opening arguments, the government stated that "the confidential informant's reliability had been proven to Officer Voigt." (III R. at 175.) In closing arguments, the government referred to the out-of-court statements to support its theory of the case: "We know that at least 48 hours prior to the search warrant application on March the 28th, there was methamphetamine in the Defendant's residence." (VI R. at 540.) The evidence directly implicates the issue of guilt and the government clearly relied on the informant's statements as truthful. We conclude that such evidence was used for more than the "limited" purpose allowed by Freeman, 816 F2d at 563, and its admission constitutes an abuse of discretion. See Cass, 127 F.3d...

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