U.S. v. Basinger, 94-30159
| Citation | 60 F.3d 1400 |
| Decision Date | 24 July 1995 |
| Docket Number | No. 94-30159,94-30159 |
| Parties | 42 Fed. R. Evid. Serv. 242, 95 Cal. Daily Op. Serv. 5755, 95 Daily Journal D.A.R. 9826 UNITED STATES of America, Plaintiff-Appellee, v. Steaven Martin BASINGER, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
George Paul Trejo, Jr., Contreras-Trejo & Trejo, Yakima, WA, for defendant-appellant.
Donald E. Kresse, Jr., Asst. U.S. Atty., Yakima, WA, for plaintiff-appellee.
Appeal from the United States District Court for the Eastern District of Washington.
Before: POOLE, BOOCHEVER, and WIGGINS, Circuit Judges.
OVERVIEW
In January 1994, a jury convicted Steaven M. Basinger of establishing a drug manufacturing facility in violation of 21 U.S.C. Sec. 856(a)(1), and manufacturing methamphetamine in violation of 21 U.S.C. Sec. 841(a)(1). He was sentenced to 151 months on each count, to be served concurrently. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291, and we affirm.
Steaven M. Basinger lived in his mobile home on property located at 61 Dorsett Drive, in Yakima, Washington, from some time in November 1992 until a few days before Christmas 1992. Jay Woods, who owned the property, lived in Nebraska and gave Basinger permission to spend the winter there. A derelict motor home and an L-shaped shed were already on the property. One section of the shed stored tools, furniture, and other odds and ends. The other section was secured, and it primarily stored chemicals and equipment left over from Woods' former pesticide business and chemistry experiments.
On November 29, 1992, Woods' son-in-law, Bruce McDonald, went to the property to meet Basinger and to search for some of Woods' crucibles in the shed. He noted that Basinger seemed "paranoid" about McDonald entering the shed and seemed to want to keep McDonald out. McDonald entered anyway and noticed that things had been moved around.
McDonald returned to the property on December 28, 1992. He discovered that the shed was secured differently and more tightly than it had been before. He noticed that Basinger's mobile home was not on the premises, but a U-Haul trailer rented to Basinger was there. Upon entering the secured section of the shed, McDonald discovered what appeared to be a clandestine drug laboratory. He contacted the authorities, who obtained a warrant to search the property.
Officers discovered evidence that the laboratory in the shed had been used to produce methamphetamine. Basinger was arrested and charged with knowingly maintaining a place for the purpose of manufacturing, distributing, or using methamphetamine (Count I), and with knowingly or intentionally manufacturing methamphetamine (Count II). He was convicted on both counts on January 21, 1994.
The district court determined that 453 to 680 grams of methamphetamine had been produced at the lab. This resulted in a sentencing range of 151 to 188 months under the Sentencing Guidelines. The court sentenced Basinger to 151 months imprisonment on each count, to be served concurrently. Basinger timely appeals both his conviction and his sentence.
The evidence is sufficient to support Basinger's conviction if, reviewing the evidence in the light most favorable to the government, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781, 2788, 61 L.Ed.2d 560 (1979); United States v. Lennick, 18 F.3d 814, 819 (9th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 162, 130 L.Ed.2d 100 (1994). Circumstantial evidence may be sufficient to sustain the conviction. Lennick, 18 F.3d at 820.
As to Count I, the government had to prove that Basinger (1) knowingly (2) opened or maintained a place (3) for the purpose of manufacturing, distributing, or using methamphetamine. 21 U.S.C. Sec. 856(a)(1). We conclude that there is sufficient evidence to support Basinger's conviction on this count.
There is an abundance of evidence from which the jury could infer Basinger's knowledge of the methamphetamine laboratory, including: Basinger's residence on the property and access to the shed; evidence that Basinger had, in fact, been in the secured portion of the shed; McDonald's testimony that Basinger apparently did not want McDonald to enter the shed; testimony that Basinger was the only person seen or heard on the property; the fact that the shed was brightly lit at night when Basinger was on the property; the additional security installed at the shed (e.g., new locks, covered window, secured plywood) some time between McDonald's November and December visits; and the obvious indicia of a methamphetamine laboratory in the shed. See United States v. Onick, 889 F.2d 1425, 1431 (5th Cir.1989).
Basinger focuses his argument on the second element of section 856(a)(1), urging that he did not "open or maintain a place" for the purpose of manufacturing, distributing, or using methamphetamine. Basinger relies solely on cases addressing evidentiary sufficiency in the context of convictions for possession of contraband. He argues that he cannot be convicted of "opening or maintaining a place" for drug activity absent a showing that he exercised "dominion and control" over the premises.
This circuit has never addressed the applicability of the "dominion and control" inquiry to convictions under section 856. Cases from other circuits suggest that proof of a defendant's "dominion and control" over a place may be sufficient to show that he "maintains" that place, see United States v. Howell, 31 F.3d 740, 741 (8th Cir.1994) (per curiam), but that proof of "dominion and control" is not necessary to establish "maintenance" under section 856(a)(1), see United States v. Clavis, 956 F.2d 1079, 1091, modified on other grounds, 977 F.2d 538 (11th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1619, 123 L.Ed.2d 178 (1993). In Clavis, the Eleventh Circuit stated that "[a]cts evidencing such matters as control, duration, acquisition of the site, renting or furnishing the site, repairing the site, supervising, protecting, supplying food to those at the site, and continuity" are relevant to the defendant's "maintenance" of a place. 956 F.2d at 1091.
We need not decide in this case whether a showing of less than dominion and control would be sufficient to demonstrate a defendant's "maintenance" of the property. The evidence, viewed in the light most favorable to the government, supports the inference that Basinger exercised "dominion and control" over the property. Basinger sought and received permission to live on the property during the winter. He was the only resident on the property and the only day-to-day caretaker and supervisor of the site. In return for permission to stay on the site, Basinger agreed to repair the water system. There was evidence that Basinger and, occasionally, his female guest were the only people seen or heard on the property. There was evidence that Basinger entered the secured section of the shed where the laboratory was found. Cf. United States v. Walker, 993 F.2d 196, 200 (9th Cir.) (defendant's "dominion and control" over drugs found in apartment was established where defendant possessed keys to apartment and bedrooms, and defendant's clothes and shoes, a receipt with his name, and a large sum of cash were found near the drugs), cert. denied, --- U.S. ----, 114 S.Ct. 276, 126 L.Ed.2d 227 (1993); United States v. Disla, 805 F.2d 1340, 1350 (9th Cir.1986) () (citation omitted). 1
The jury could also infer that Basinger had the purpose to "manufacture, distribute, or use" methamphetamine at the site. There was extensive and obvious methamphetamine manufacturing paraphernalia in the secured section of the shed. Evidence was introduced that Basinger on a previous occasion had been found in possession of methamphetamine and red phosphorous, which is an essential chemical in the production of methamphetamine by the "red phosphorous method" (probably used in this lab, according to expert testimony). There was evidence that Basinger was the only person present at the site, and thus a jury could infer that he was the "supervisor, manager, or entrepreneur" of the laboratory. See United States v. Banks, 987 F.2d 463, 466-67 (7th Cir.1993); Onick, 889 F.2d at 1431.
As to Count II, the government had to prove that Basinger (1) knowingly or intentionally (2) manufactured methamphetamine. 21 U.S.C. Sec. 841(a)(1). We hold that the evidence was sufficient to allow the jury to conclude that Basinger manufactured the methamphetamine found in the shed. We discuss the two elements of this offense in reverse order.
First, there is sufficient evidence from which the jury could find that methamphetamine was manufactured at the site. Law enforcement personnel found traces of methamphetamine in various flasks and containers, empty containers of ephedrine (a precursor chemical), an acetone wash solution containing detectable amounts of methamphetamine, and other paraphernalia used in the manufacture of methamphetamine (e.g., separation flasks, litmus paper, a heating plate, and filters). See United States v. Calabrese, 825 F.2d 1342, 1345, 1348 (9th Cir.1987) ().
Second, there is sufficient evidence from which the jury could infer that Basinger had the knowledge or intention to...
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