U.S. v. Francis

Citation327 F.3d 729
Decision Date28 April 2003
Docket NumberNo. 02-2006.,02-2006.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Robert K. FRANCIS, Jr., Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

John R. Osgood, argued, Lee's Summit, MO, for appellant.

David Andre Estavez Barnes, argued, Asst. U.S. Atty., Kansas City, MO, for appellee.

Before McMILLIAN and SMITH, Circuit Judges, and LONGSTAFF,1 District Judge.

SMITH, Circuit Judge.

Robert K. Francis, Jr. challenges the sufficiency of all and the admissibility of some of the evidence used to convict him. At trial, a jury convicted Francis, Jr. of attempting to manufacture ten grams or more of methamphetamine, possession of marijuana with intent to distribute, and possession of equipment used for drug manufacturing.2 The District Court3 sentenced Francis, Jr. to sixty-three months' imprisonment, followed by a four-year term of supervised release. We affirm.

I. Background

On March 22, 1997, the Independence, Missouri, police and fire departments responded to a residential fire. While extinguishing the fire, firefighters discovered items they recognized as potential implements of a once operational methamphetamine laboratory. The firefighters saw these items in plain view during their examination of the basement.4 Due to the suspicious nature of the fire and the items found in the basement, Independence Fire Department (IFD) Investigator Kelly Scott inspected the site. Upon entering the house, Scott immediately went to the basement. While there, Scott saw a cardboard box containing glass beakers and other items commonly found in drug laboratories. Several glass containers had fallen out of the box. Based upon his investigation, Scott surmised that the fire probably originated in the basement when the water heater's open flames ignited fumes emanating from a broken glass container. Because of the nature of the items found in the basement and the continuing danger of poisonous vapors, Scott ordered all IFD personnel from the structure and called for the Special Operations Unit to respond to the scene.

Independence Police Department (IPD) Sergeant Cox and Officer Anderson entered the residence after speaking with Scott and learning of the apparent drug-related items in the basement. After confirming that no one was in the house, the officers went directly to the basement with the firemen. Cox and Anderson observed the glassware and the burned box. They also saw an open Coleman cooler that contained marijuana. Prior to entering the residence, neither Cox nor Anderson spoke with Francis, Jr. or his father. Cox testified that after viewing the house, he considered it a crime scene and posted Anderson at the front door. Cox then discussed his observations with IPD Detectives Sweeney and Slaybaugh. The IPD did not evacuate or close off the surrounding neighborhoods and did not evacuate any neighboring homes.

Following Cox's and Anderson's viewing of the house, IPD Detectives Sweeney and Slaybaugh and Jackson County Drug Task Force Detective Cook entered the house and went to the basement.5 The detectives saw in plain view components of a possible methamphetamine lab in a burned area in the southwest part of the basement. It appeared to be the same area where the fire began. Based on their training and experience, Slaybaugh and Sweeney agreed that an operational methamphetamine lab was located in the basement.

Sweeney and Slaybaugh then spoke with both Robert K. Francis, Sr. — the owner of the home — and Francis, Jr. about the discovery. The detectives described the items they had discovered and asked for consent to search the rest of the home. The officers advised the Francises that if they refused to give consent, the police would seek a search warrant. Francis, Jr. directed the investigators to ask his father, and when they did, Francis, Sr., signed the consent-to-search form. With the signed consent, Slaybaugh and Sweeney reentered the house to assess the situation.6 At that time, the multiple flammable liquids and other chemicals associated with the methamphetamine lab had not been removed.

During the clean-up, the DEA and IPD recovered numerous drug-related items from the home including a book entitled "Third Edition of Uncle Fester's Methamphetamine Manufacturing."7 Laboratory analysis indicated that the materials recovered from the home could potentially produce ten grams or more of methamphetamine. Additionally, the team recovered over two pounds of marijuana. Based on the discovery of these materials, the police arrested and charged Francis, Jr.

At trial, Francis Jr. and his father testified that the methamphetamine laboratory equipment, chemicals, and supplies did not belong to Francis, Jr. They contended that he unknowingly acquired them when he purchased a vehicle from a coworker. According to the Francises's account, Dennis Lucas, Francis, Jr.'s work supervisor owed Francis, Jr. approximately $600. As payment, Lucas gave Francis, Jr. a pickup truck. Trash bags and boxes filled the truck bed when the Francises took the truck from Lucas's driveway. Rather than unload the bags and boxes at that time, Francis, Jr. drove home and unloaded the items into the garage, where they remained for four to five months. Francis, Jr. later took them to the basement to clear the garage. He testified that the cardboard box ended up on the clothes dryer after he had emptied chemicals out of it (and other boxes) into a water bottle in the basement. He testified that although he saw the various glass containers, he did not know what they were. He found the methamphetamine book in one of the boxes he was emptying and took it upstairs to read. He testified, however, that he did not see anything in the book that looked like any of the items he found in the truck, although he did suspect at that time that it may have had something to do with those items. Francis, Jr. testified that after he was charged in this case, he learned that Lucas had been charged with manufacturing and distributing methamphetamine. During his testimony, Francis, Jr. was shown a judgment and docket sheet that indicated that Lucas actually had first appeared in court on March 14, 1997, seven days prior to the fire at the Francises' house.

Francis, Jr. admitted ownership of the marijuana found in the house and pleaded guilty of possession. He testified that he found the Coleman cooler near the railroad tracks next to a field of marijuana, and he picked the marijuana and threw it in the cooler. He testified that he later separately bagged some of the usable portions and had been using portions from one of the bags. He testified, however, that he never intended to sell the marijuana. Francis, Jr., a disabled veteran, identified a list of medications, including pseudoephedrine hydrochloride 60 mg tablets, prescribed by the Veterans Administration Hospital. He testified that he purchased the pills found in his house at the hospital in Independence and was taking them by prescription.

Following his indictment, Francis, Jr. filed a motion to suppress. He argued that exigent circumstances did not exist to justify the warrantless search of the premises, and the items found in the search should be suppressed. The magistrate recommended denying the motion, and the District Court accepted the denial in relevant part.

II. Sufficiency of the Evidence

In his first argument, Francis, Jr. challenges the sufficiency of the evidence on the charge of attempted manufacture of methamphetamine. For his challenge to succeed, Francis must pass a strict standard. He must show that based upon the evidence adduced at trial, no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Gillings, 156 F.3d 857, 860 (8th Cir.1998) (internal citations omitted). In determining whether an appellant meets this standard, we review the evidence in the light most favorable to the government, resolving evidentiary conflicts in the government's favor. Id. Circumstantial evidence as well as direct evidence may support a conviction. Id. We will not lightly overturn the verdict of a jury. Id.

Francis, Jr., in large measure, bases his sufficiency argument on alleged inconsistencies in the testimony. He points out that only one of the government's witnesses, Detective Cook, opined that an active methamphetamine "cook" was in progress. Francis, Jr. notes that IFD Inspector Scott testified that the items stacked in the cardboard box did not appear to be part of an operating methamphetamine lab. The other government witnesses testified that while one had occurred at some time, it was not in progress at the time of the fire. Furthermore, Francis, Jr. argues that the evidence failed to account for the amount of ephedrine binder residue indicated by test results. He contends that the number of pills missing from his supply would not produce the quantity discovered. Francis, Jr. also argues that the government should have checked unidentified fingerprints found on some bottles for a match with Lucas, the individual from whom he had purchased the truck containing the incriminating evidence. The government responds that the evidence shows that Francis, Jr. took a substantial step in commission of the charged offense. The lab in his home contained extracted pseudoephedrine and binding material indicating that the first step of the process-extraction of the ephedrine-had been completed. Uncontradicted expert testimony indicated that the fire started at the site of the lab equipment when fumes from a combustible liquid made contact with flame.

The evidence supports the finding that a methamphetamine lab existed in the basement of the Francises' home and that Francis, Jr. knew of the presence of the lab equipment. Francis, Jr. admitted possessing and reading a book about how to make methamphetamine at the time that the lab, at least...

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