327 F.3d 729 (8th Cir. 2003), 02-2006, U.S. v. Francis

Docket Nº:02-2006
Citation:327 F.3d 729
Party Name:United States of America, Plaintiff-Appellee, v. Robert K. Francis, Jr., Defendant-Appellant.
Case Date:April 28, 2003
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 729

327 F.3d 729 (8th Cir. 2003)

United States of America, Plaintiff-Appellee,

v.

Robert K. Francis, Jr., Defendant-Appellant.

No. 02-2006

United States Court of Appeals, Eighth Circuit

April 28, 2003

Submitted: November 5, 2002

Appeal from the United States District Court for the Western District of Missouri.

Page 730

[Copyrighted Material Omitted]

Page 731

COUNSEL

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

David Andre Estavez Barnes, argued, Asst., U.S. Atty., Kankas 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 drugrelated 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 Page 732

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, Page 733

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...

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