U.S. v. Gaskins

• Decision Date: 17 June 1988
• Docket Number: No. 87-5138,87-5138
• Citation: 849 F.2d 454
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey GASKINS, aka Jeffery Gaskin, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 454

849 F.2d 454

UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey GASKINS, aka Jeffery Gaskin, Defendant-Appellant.

No. 87-5138.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 2, 1988.

Decided June 17, 1988.

Gail Ivens, Deputy Federal Public Defender, Los Angeles, Cal., for defendant-appellant.

John H. Feiner, Asst. U.S. Atty., Major Narcotics Section, Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before WALLACE, ALARCON and BEEZER, Circuit Judges.

WALLACE, Circuit Judge:

Gaskin appeals his conviction following a jury trial for possession of methamphetamine and manufacturing methamphetamine in violation of 21 U.S.C. Sec. 841(a)(1). ¹ On appeal, Gaskin argues that we should reverse his conviction because the district court's additional instruction on aiding and abetting, given in response to a question from the jury, violated Rule 30 of the Federal Rules of Criminal Procedure and prejudiced him because the court did not allow Gaskin's counsel to argue against an aiding and abetting theory to the jury. Gaskin also argues that the district court violated his sixth amendment right to a unanimous verdict when it accepted the verdict notwithstanding a note which allegedly revealed juror dissension on the manufacturing count. The district court had jurisdiction under 18 U.S.C. Sec. 3231. We have jurisdiction under 28 U.S.C. Sec. 1291. Because we find that the Rule 30 violation requires reversal of both counts, we do not reach the question whether Gaskin's sixth amendment rights were violated in this case.

I

A police officer detected a strong odor of ether, which is used to manufacture methamphetamine, near Gaskin's home. The police officer advised the Drug Enforcement Administration (DEA).

DEA Special Agent Barkett investigated and also detected the odor. He observed Gaskin leave the residence.

Armed with a search warrant, Barkett and other federal and state law enforcement officers subsequently approached Gaskin's residence, and smelled a particularly strong ether odor. When Barkett knocked and announced the search, no one answered. After a forced entry, Barkett encountered Gaskin five feet from the door. Initially Gaskin did not believe that Barkett was with the DEA, because someone told him earlier in the day that he would be the target of a "rip-off" that evening.

During the search, the odor of ether was so strong within the house that some officers required respirators. In the garage the officers found a large-scale, operational methamphetamine laboratory, a chemical formula for manufacturing methamphetamine, and a daily log book containing a daily record of the manufacturing process. They also found receipts from the establishment where Gaskin made his earlier purchase for chemicals and equipment, including a receipt for ether and for a thermometer. In addition, they found a little over three thousand grams of methamphetamine.

Following his arrest, Gaskin waived his rights and stated that the laboratory and the drugs belonged to Sanders, his brother-in-law. Gaskin claimed that his fingerprints were on the laboratory equipment because he had attempted to disassemble the laboratory when he learned what Sanders was doing and that he had also received the chemical burns on his hands at that time. He claimed that he did not participate in the manufacturing, but instead had merely "kept his eyes closed when he shouldn't have" because Sanders had assured him that "good fortune" would come Gaskin's way "if he did not see anything or say anything."

During the trial, the district judge held a conference with counsel to decide which instructions he would give to the jury. The government requested an instruction on aiding and abetting. Gaskin's counsel stated that if the court decided to give an aiding and abetting instruction, the court should also give a special unanimity instruction informing the jurors that they must be unanimous as to the theory of Gaskin's guilt--either as a principal or an aider and abettor. The district court suggested giving neither and both counsel agreed.

Following closing arguments, the court instructed the jury that possession with intent to distribute methamphetamine and manufacturing methamphetamine were specific intent crimes and that the government had to prove beyond a reasonable doubt that Gaskin intended to commit these crimes. The court also instructed the jury that the verdict had to be unanimous in order to convict Gaskin.

After the jury deliberated for a day and one-half, it sent the following note to the court:

Is it possible to have a clarification of the word "manufacturing"? Would we be correct [to assume] under the law that a person allowing or providing a physical space for a product to be produced, and/or being aware of what the product is and/or having agreed to accept a payment of any nature constitute being a party to the manufacturing? What level of involvement constitutes manufacturing?

The court conferred with counsel about how to respond to the jury's question. The government urged the court to give an aiding and abetting instruction. Gaskin's counsel objected to the instruction because she had not addressed the aiding and abetting theory in her argument to the jury. The judge disagreed and stated that he believed her entire argument was that Gaskin was merely present at his house while the methamphetamine was being produced. Gaskin's counsel objected to any further instructions but stated that if the court intended to give an aiding and abetting instruction, the court should also give an instruction explaining that Gaskin's "mere presence" would not constitute aiding and abetting.

The court decided to give the aiding and abetting instruction as well as a mere presence instruction. The court recessed for the evening, but requested counsel to brief the issue whether a special unanimity instruction should accompany the two new instructions concerning aiding and abetting, and, if so, to prepare a proposed special unanimity instruction.

The following morning the government submitted a proposed instruction on aiding and abetting and mere presence and a brief arguing that no special unanimity instruction was necessary. Gaskin's counsel did not submit an instruction, but instead renewed her objection to the aiding and abetting instruction on the grounds that the supplemental instruction would violate Rule 30's requirement that the court "inform counsel of its proposed action [concerning requested jury instructions] prior to their arguments to the jury." Fed.R.Civ.P. 30 (emphasis added). She contended that it would be error to give the new instruction without giving her the "opportunity to argue the facts regarding aiding and abetting from mere presence...." She therefore requested leave to reopen closing argument. She also requested that the court instruct on unanimity, but did not submit an instruction. The court denied both requests.

Court was then convened and the judge gave the following instruction to the jury:

The guilt of the Defendant may be established without proof that the accused personally did every act constituting the offense charged. Who ever commits an offense against the United States or aid, abets, counsels, commands, induces or procures its commission is punishable as a principal; meaning, punishable the same as [sic] person who does the criminal act.

In other words, every person who willfully participates in the commission of crime may be found to be guilty of that offense. Participation is willful if done voluntarily and intentionally and with a specific intent to do something the law forbids, that is to say, with bad purpose either to disobey or disregard the law.

In order to aid and abet another to commit a crime, it is necessary that a Defendant willfully associate himself in some way with a criminal venture and willfully participate in it as he would in something he wishes to bring about, that is to say, that he willfully seeks by some act or omission of his to make a criminal venture succeed.

You, of course, may not find the Defendant guilty unless you find beyond a reasonable doubt that every element of the crime you find elsewhere in the instruction was committed by some person or persons and that the Defendant participated in the commission of the crime.

A Defendant's mere presence at the scene of the crime and knowledge that a crime has/is being committed is not sufficient to establish that an accused aided and abetted the commission of a crime, unless you find beyond reasonable doubt that he was a participant, and not merely a knowing spectator.

The jury foreman stated that the instruction helped to answer the jury's question.

A few minutes after receiving the instruction, the jury informed the court that it had reached a unanimous verdict. As to count one, the jury concluded that Gaskin was not guilty of possession of methamphetamine with intent to distribute, but was guilty of the lesser included offense of possession of methamphetamine. As to count two, the jury concluded that Gaskin was guilty of manufacturing methamphetamine. The jury, however, attached a note to the verdict signed by six jurors which stated: "Although we found Mr. Gaskin guilty of manufacturing methamphetamine, we feel that he was indirectly involved."

The judge stated, out of the jury's presence, that he believed that six jurors found Gaskin guilty on an aiding and abetting theory on count two. The government agreed, but thought no additional instruction was necessary. Gaskin's counsel argued that the note demonstrated that the jury did not unanimously agree on the facts underlying their verdict, and therefore needed to receive a special unanimity instruction and be required to deliberate further. Although the judge agreed that the jury was not necessarily unanimous as to the underlying facts, he refused to...