U.S. v. Walls
| Decision Date | 12 June 2002 |
| Docket Number | No. 00-5867.,No. 00-5868.,00-5867.,00-5868. |
| Citation | 293 F.3d 959 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Franklin WALLS (00-5867); Jackie Phillip Stephens (00-5868), Defendants-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Gregg L. Sullivan (argued and briefed), Assistant United States Attorney, Office of U.S. Atty., Chattanooga, TN, for Plaintiff-Appellee.
Russell L. Leonard (argued and briefed), Winchester, TN, for Defendant-Appellant.
Before RALPH B. GUY, Jr., and BATCHELDER, Circuit Judges; WALTER, District Judge.*
Defendants, Franklin Walls and Jackie Phillip Stephens, were tried together and convicted of conspiracy to manufacture methamphetamine and various other counts of manufacturing, attempting to manufacture, and possessing chemicals and equipment used to manufacture methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1) and 843(a)(6). Stephens was also convicted of carrying a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1). On appeal, Walls argues that the district court erred by denying both his motion for severance and his motion for judgment of acquittal on several of the charges. The only conviction Stephens challenges is his conviction under § 924(c)(1). Attacking his sentence, Stephens argues that the district court should have granted him a downward departure due to the disparity in sentencing between him and a cooperating coconspirator. Taking a different tack, Stephens contends that the disparity in sentencing resulted in part from prosecutorial misconduct in the charging decision. After review of the record and the arguments presented on appeal, we affirm.
The 19-count superceding indictment charged that Stephens and Walls, along with Kenny Tucker and Joe Magnum, conspired to manufacture methamphetamine between August 1997 and September 1999. Tucker and Magnum pleaded guilty and testified at the joint trial of Stephens and Walls. Apart from the conspiracy charge, Stephens and Walls were charged jointly in counts 16 and 17 with manufacturing methamphetamine and possessing chemicals and equipment used in the manufacture of methamphetamine on September 30, 1999. Stephens was charged separately in counts 5, 6, 12, 13, 14, and 15 with manufacturing, attempting to manufacture, and possessing chemicals and equipment used to manufacture methamphetamine on June 3, 1998, August 3, 1999, and August 10, 1999. Stephens was also charged in count 7 with carrying a firearm during and in relation to a drug trafficking offense on June 3, 1998. Finally, Walls was charged separately in counts 18 and 19 with attempting to manufacture and possessing chemicals and equipment used to manufacture methamphetamine on September 30, 1999. Stephens and Walls were convicted of all charges.1
The evidence at trial established that Stephens knew how to and regularly cooked methamphetamine during the period relevant to the charged conspiracy. The first witness, Anne Brooks, had been a regular methamphetamine user. When she went to purchase methamphetamine from Gary Sanson during the summer of 1998, he directed her to get it from Stephens. Over the next year, Brooks got methamphetamine from Stephens between ten and twenty times. Brooks let Stephens cook methamphetamine at her house twice and watched him cook it somewhere else another time.
April Kirk, age 18, testified that she had used methamphetamine every day for about two years and was still using at the time of trial. Kirk lived with Stephens for about a year and he provided her with methamphetamine. She helped get supplies such as acetone, coffee filters, Coleman fuel, and Red Devil lye, which were needed to cook methamphetamine. Kirk estimated that Stephens cooked methamphetamine once or twice a month. Kirk explained that Stephens, Tucker, Sanson, Perry Colby, and Ken Stephens went in together on the chemicals used to make methamphetamine and helped each other cook it. Kirk also got methamphetamine from Tucker, who grew up in the same household as Stephens. Stephens and Kirk stayed with Tucker at times and had been living at Tucker's house for a few weeks when they were arrested on September 30, 1999. Kirk knew Walls, who had been married to Tucker's mother for many years, and saw him use methamphetamine at Tucker's house. Kirk was present once when Stephens cooked methamphetamine at Walls's house.
Tucker testified that he had used methamphetamine for seven or eight years, but learned to cook it sometime during the last two or three years. Tucker said he cooked methamphetamine with Stephens four or five times and indicated that Stephens usually cooked with Colby Perry and Benton Smith. Tucker also testified that he got iodine and pseudoephedrine from Stephens a few times and sometimes used flasks and condensers belonging to Stephens to cook methamphetamine. Tucker, a daily user, gave away or sold methamphetamine to others. When he had some methamphetamine, Tucker would give or sell some to Stephens and Walls. They, in turn, would give or sell methamphetamine to Tucker when they had some.
Perry and Magnum testified that Walls let them cook methamphetamine at his house three times in exchange for a share of what they made. Magnum felt he was being cheated, so he took his iodine to Tucker who, in return, fixed Magnum's car and gave him a quarter ounce of the methamphetamine he produced with it. Magnum said he saw Stephens cook methamphetamine at Tucker's house in August or September 1999. Perry testified that he got iodine from Stephens once in exchange for some of the methamphetamine it produced. Another time, Perry got chemicals from Magnum, who said he got them from Walls. Perry estimated that Tucker and Smith cooked about one and five pounds of methamphetamine per week, respectively.
On June 3, 1998, an officer observed Stephens driving a brown Lincoln in excess of the speed limit and knew that his driver's license had been suspended. When the officer attempted to stop Stephens, a high-speed chase ensued and Stephens eluded the officer. The car was found a few minutes later with the door open and the motor still running. Stephens had abandoned the car, which was registered to his mother, after it had hit a tree. Police found a loaded 9-mm. Tanfoglio pistol between the front seats.
In the backseat, police found a police scanner, a power converter, butane and propane canisters, glass pipes, Brillo pads, aluminum foil, a torch head, coffee filters, hosing, a funnel, pseudoephedrine, digital scales, and a piece of paper with "red phosphorous" and a chemical supply company's name written on it. There were also some personal items, including photographs of the house Stephens and his ex-wife had built. Although no methamphetamine was found in the car, Stephens was convicted of committing the following offenses on June 3, 1998; attempting to manufacture methamphetamine (count 5), possession of equipment used in the manufacture of methamphetamine (count 6), and carrying a firearm during and in relation to a drug trafficking offense (count 7).
A second chase occurred on August 3, 1999, as Kirk and Stephens were leaving a motel room where Stephens had cooked methamphetamine the night before. Acting on a tip, police observed Kirk and Stephens loading boxes from a motel room into a red 1987 Nissan sports car. When Kirk and Stephens drove around to the back to put something in the dumpster, the officers tried to block them in with their cars. Stephens and Kirk sped away, eluded police, and abandoned the car. In the car, police found a number of items used in the manufacture of methamphetamine and coffee filters that bore traces of cocaine base and methamphetamine. Stephens and Kirk had taken luggage and a box from the car, which they were seen dumping into a nearby ditch. From that ditch police retrieved materials that are used to manufacture methamphetamine, including glassware, condensers, acetone, lye, and several jars of liquid. Two of the liquids tested positive for methamphetamine. Stephens was convicted of attempting to manufacture and possessing chemicals and equipment used to manufacture methamphetamine on that date (counts 12 and 13).
On August 10, 1999, Stephens called an investigator with the sheriff's department and arranged to meet with him. Stephens, who said he intended to enter drug rehabilitation, handed over a glass beaker and a bottle containing a liquid he called "methoil." He said the liquid was fifteen minutes away from being methamphetamine and explained the steps that still needed to be taken to complete the process. Although Stephens also promised to turn over glassware that was in the hands of others, he did not call again. The liquid tested positive for methamphetamine. Stephens was convicted of manufacturing and possessing chemicals and equipment used to manufacture methamphetamine on that date (counts 14 and 15).
On September 29, 1999, several officers went to Tucker's residence looking for Stephens for whom there was an outstanding misdemeanor warrant for driving with a suspended license. Tucker directed the officers to the detached garage, where Stephens was found and arrested. Two glass vials containing powdered methamphetamine were found on his person. One officer detected the odor of what he thought was a methamphetamine laboratory. Walls was stopped as he was moving away from the garage. He was found to have a plastic bag in his pocket that contained a used coffee filter with methamphetamine residue on it. Walls insisted that he needed to use the bathroom, so he was escorted into the house. Kirk, Magnum, and several others were found in the house. Police obtained a search warrant for the premises and seized glass pipes, coffee filters, razor blades, acetone, Coleman fuel, muriatic acid, and...
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