U.S. v. Spencer, 05-2283.

• Decision Date: 10 March 2006
• Docket Number: No. 05-2283.,05-2283.
• Parties: UNITED STATES of America, Appellee, v. Joseph Nelson SPENCER, Jr., Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

439 F.3d 905

UNITED STATES of America, Appellee, v. Joseph Nelson SPENCER, Jr., Appellant.

No. 05-2283.

United States Court of Appeals, Eighth Circuit.

Submitted: November 15, 2005.

Filed: March 10, 2006.

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Pamela A. Wingert, argued, Spirit Lake, Iowa, for appellant.

Rebecca Goodgame Ebinger, argued, Cedar Rapids, Iowa, for appellee.

Before ARNOLD, BEAM, and RILEY, Circuit Judges.

RILEY, Circuit Judge.

Joseph Nelson Spencer Jr. (Spencer) appeals his convictions related to his home drug manufacturing operation. The district court¹ sentenced Spencer to an aggregate sentence of 181 months' imprisonment. On appeal, Spencer contends the district court erred in denying his motion to suppress, and the evidence was insufficient to support the convictions. For the reasons stated below, we affirm the district court on all points.

I. BACKGROUND

This case began on June 14, 2000, when a United Postal Service (UPS) truck driver reported to Crawford County Deputy Sheriff Mike Bremser (Deputy Bremser) the UPS driver had delivered four liters of methanol to a residence at 40324 220th Street in rural Monona County, Iowa. When the UPS driver delivered the methanol to the residence, he detected a strong unfamiliar foul odor, and he observed a hot plate, glass beakers, numerous glassware and tubing, and a yellowish liquid in a large beaker on the front porch of the residence. Deputy Bremser then contacted Monona County Deputy Sheriff Roger Krohn (Deputy Krohn) about a possible clandestine drug laboratory at the residence.

Deputy Krohn obtained from the UPS driver a copy of the packing list for the methanol delivery. Deputy Krohn also contacted the chemical supply company located in Burbank, California, which shipped the methanol, and received copies of a prepaid invoice and a credit card sales receipt indicating Joseph Spencer purchased a glass beaker and various chemicals, including one gallon of "Methyl Alcohol (99.5%) Anhydrous," and had the items delivered to 40324 220th Street.

Based on this information, Deputy Krohn completed a search warrant application. Under the "Property or Persons to be Searched" portion of the search warrant application, Deputy Krohn entered "See Attachment `D.'" Attachment D contained a copy of the property card from the Monona County Assessor with a scale drawing of the residence at 40324 220th Street.

Deputy Krohn presented the search warrant application, attachments, packing slip, prepaid invoice, and credit card sales receipt to a state court magistrate judge, who then issued the search warrant.

On June 16, 2000, state law enforcement officers executed the search warrant. Officers located Spencer outside the residence and placed him into custody. Monona County Deputy Sheriff Summer Erlandson provided Spencer with a copy of the first page of the search warrant, but Spencer did not receive a copy of the attachments.

During the search, officers seized numerous items, including over 2,000 marijuana plants, lights, large light bulbs, a water storage tank, pumps, pH testers, pipes for fertilizer and water, literature and notes for growing marijuana indoors, hoses, electrical wires, chemicals, fertilizers, handwritten calculations of fertilizers and chemicals, dried poppy plants, opium poppy plants, a recipe for a red phosphorus methamphetamine lab, a butter tub with red powder, a mason jar with liquid, a baking dish with residue, a plastic bottle with a red/brown substance, pseudoephedrine bottles, green liquid, a coffee grinder with brown residue, a jar of iodine, red phosphorus from match striker plates, a Marlin Model .22 caliber semi-automatic rifle, an Auto Nine Corp. .22 caliber semi-automatic pistol, and a blue bag containing a dismantled 9mm Stenmark 2 machine gun.

A third superseding indictment charged Spencer with eight counts. Count 1 charged Spencer with knowing and intentional manufacture of and attempt to manufacture 1,000 or more marijuana plants, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. Count 2 charged Spencer with being an unlawful user of controlled substances who possessed a firearm, in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2). Count 3 charged Spencer with knowing and intentional manufacture of and attempt to manufacture five grams or more of actual (pure) methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846. Count 4 charged Spencer with knowing and intentional manufacture of and attempt to manufacture opium poppy plants, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846. Count 5 charged Spencer with knowing and intentional manufacture of and attempt to manufacture hashish oil, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(D), and 846. Count 6 charged Spencer with knowing and intentional manufacture of and attempt to manufacture psilocybin (mushrooms), in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846. Count 7 charged Spencer with knowing possession of one or more firearms, including a machine gun, in furtherance of the drug trafficking crimes charged in Counts 1, 3, 4, 5, and 6, in violation of 18 U.S.C. § 924(c)(1)(A)(i). Count 8 charged Spencer with knowing possession of a machine gun, in violation of 18 U.S.C. §§ 922(o) and 924(a)(2).

After indictment, Spencer filed a motion to suppress evidence found at his residence during the execution of the search warrant. Following two hearings on the motion to suppress, the magistrate judge filed a report and recommendation, recommending Spencer's motion to suppress be denied. Spencer filed timely objections to the magistrate judge's report and recommendation. After holding two hearings and conducting a de novo review of the record, the district court denied Spencer's motion to suppress.

During the nine-day trial, Spencer represented himself pro se with standby counsel. At trial, UPS driver Butch Lahr (Lahr) testified about observations he made when he delivered methanol to Spencer's residence. After opening the porch door, Lahr smelled a "pretty stinky and pretty bad" odor, "like if somebody was peeing on a hot heater." Inside the porch, Lahr observed something cooking on a double hot plate with glass or plastic lines going to a beaker and a liquid. Upon seeing this, Lahr turned around to return to his UPS truck. As Lahr was leaving, Spencer came out of the porch and "started hollering at [Lahr]." That night, Lahr contacted Deputy Bremser.

Iowa State Patrol Trooper Steve Barger (Trooper Barger) testified that on June 16, 2000, he surveilled Spencer's residence from a cornfield adjoining the property. When Trooper Barger saw Spencer exit the residence, Trooper Barger detained Spencer until turning him over to local law enforcement.

Special Agent Mike Mittan (Special Agent Mittan) of the Iowa Division of Narcotics Enforcement testified Spencer had the most sophisticated indoor hydroponic marijuana growing operation Special Agent Mittan had ever seen. Special Agent Mittan also testified Spencer was involved in several stages of growing marijuana, from growing seedlings, to moving the growing plants from inside to outside, to then drying the plants into marijuana for use, distribution, or further refinement into hashish oil.

Special Agent Mittan testified that, inside the residence, Spencer's operation consisted of lights, pipes for fertilizer and water, marijuana plants, literature and notes for growing marijuana indoors, hoses, chemicals, fertilizers, large light bulbs, a water storage tank, pumps, and pH testers. Officers also found handwritten notes calculating amounts of fertilizers and chemicals, which notes matched the actual grow operation in Spencer's residence. In an upstairs bedroom, Special Agent Mittan observed bundles of marijuana plants with their roots cut drying upside down, as well as several bags of dried marijuana.

Special Agent Mittan testified officers seized over 2,000 marijuana plants from Spencer's property. Approximately 160 of those plants were seized from Spencer's residence and the garden. The remainder of the plants were growing on either side of the sidewalk leading to the residence's front door. According to Special Agent Mittan, although the marijuana plants in Spencer's front yard were not wild marijuana plants, they were not grown with the same care as the plants in the garden or inside the residence. Special Agent Mittan testified marijuana growers often will be lazy and toss seeds outside.

Special Agents Kerry Northway and Todd Jones (Special Agent Jones) of the Iowa Division of Narcotics Enforcement testified they counted the number of marijuana plants seized from Spencer's property on June 16, 2000, and there were 2,524 plants with root systems.

Special Agent Jones also testified about searching and seizing items from Spencer's living room area on June 16, 2000. Special Agent Jones testified he observed a scanner with headphones in Spencer's residence, and scanners often are used "to keep tabs on law enforcement, knowing what we're doing." Special Agent Jones further testified Spencer had a surveillance system, including a monitor in the living room and a camera by the back door. According to Special Agent Jones, this type of surveillance system provides "an upper hand on law enforcement."

Iowa Division of Criminal Investigations Criminalists Kelli Bodwell (Bodwell) and James Bleskacek (Bleskacek) testified regarding items seized during the search of Spencer's residence. After officers secured Spencer's residence, Bodwell and Bleskacek collected fourteen samples of items they believed pertained to controlled substances, including a butter tub containing a red powder, a mason jar with a dark viscous liquid, a sample of a clear liquid from a gas can, a baking dish with residue, a plastic bottle containing a red/brown substance, various pseudoephedrine bottles, dried poppy plants, green liquid from a wine bottle, and a coffee grinder with...