U.S. v. Felix

• Decision Date: 17 March 1989
• Docket Number: No. 88-1249,88-1249
• Parties: 27 Fed. R. Evid. Serv. 737 UNITED STATES of America, Appellee, v. Frank Dennis FELIX, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1068

867 F.2d 1068

27 Fed. R. Evid. Serv. 737

UNITED STATES of America, Appellee, v. Frank Dennis FELIX, Appellant.

No. 88-1249.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 23, 1988.

Decided Feb. 3, 1989.

Rehearing Denied March 17, 1989.

Tex McConathy, Dallas, Tex., for appellant.

Robin J. Aiken, Asst. U.S. Atty., Springfield, Mo., for appellee.

Before HEANEY ^* and BOWMAN, Circuit Judges, and ROSS, Senior Circuit Judge.

BOWMAN, Circuit Judge.

Frank Dennis Felix was convicted after a jury trial of attempting to manufacture methamphetamine in violation of 21 U.S.C. Sec. 841(a)(1) and 846. ¹ The District Court ² imposed a fine and sentenced Felix to seven years in prison. Felix appeals his conviction. We affirm.

I.

Evidence presented to the jury was essentially as follows. Government witness Paul Roach testified that during the spring of 1987 Felix furnished him with methamphetamine-making chemicals and equipment in exchange for lessons on how to "cook" (i.e., produce) methamphetamine. Roach further testified that he and Felix bought chemicals and equipment from a business called Tulsa Scientific in Tulsa, Oklahoma, and eventually cooked methamphetamine in a trailer near Beggs, Oklahoma. United States Drug Enforcement Administration (DEA) confidential informant George Dwinnells worked at Tulsa Scientific and he testified that, on a number of occasions, he sold Felix chemicals and equipment that could be used to make methamphetamine. According to Dwinnells, Felix said that he was trying to make "dope."

On July 13, 1987, law enforcement officials seized the trailer near Beggs. The trailer was in fact being used as a methamphetamine lab. Dwinnells testified that Felix informed him that during the seizing of the lab he (Felix) had avoided arrest by hiding in nearby woods. ³

On August 26, 1987, Felix and Dwinnells held a prearranged meeting at a bar. Felix gave Dwinnells a matchbook cover with a list of chemicals and equipment for making methamphetamine. Government evidence showed that Felix also gave Dwinnells a down payment of $7,500 for the chemicals and equipment, told him to secure a trailer to transport the items, and gave him directions and phone numbers so that the items could be delivered. In subsequent telephone conversations Felix increased his order (requesting both more chemicals and more equipment) ⁴ and instructed Dwinnells to deliver the items at the Joplin, Missouri, Holiday Inn.

A controlled delivery was arranged to be made in Joplin on August 31, 1987, with DEA agents and the Missouri Highway Patrol providing the surveillance. Dwinnells hitched a trailer stocked with chemicals and equipment for making methamphetamine to his vehicle and drove to Joplin. Felix and Dwinnells met at the Joplin Holiday Inn (where Felix had rented a room) and, after a brief conversation, went to the lot where Dwinnells had left the trailer. After looking at the trailer's cargo, they returned in Dwinnells's vehicle, trailer in tow, to the Holiday Inn. Felix then bought new locks, attached them to the rear doors of the trailer, and the trailer was hitched to his car. ⁵

Shortly thereafter Felix was arrested. He did not tell the arresting officers that he was working as a covert operator on behalf of the DEA, nor did he thereafter seek to so notify the DEA or any other federal agency. ⁶ On September 15, 1987, a federal grand jury returned a one-count indictment against Felix charging him with knowingly and intentionally attempting to manufacture methamphetamine. His conviction and this appeal followed.

II.

A.

In the first of six arguments presented on appeal, Felix argues that there was insufficient evidence to support his conviction and that the District Court therefore erred by denying his motion for a judgment of acquittal. Our standard of review on this issue is well-established: "[W]e must examine the evidence in a light most favorable to the government, giving it the benefit of all reasonable inferences. We will then reverse only if a reasonable jury could not have found guilt beyond a reasonable doubt." United States v. Davis, 785 F.2d 610, 619 (8th Cir.1986). Accord United States v. Parrino, 816 F.2d 414, 417 (8th Cir.1987).

Our review of the record leads us to conclude that there was sufficient evidence to support the jury's verdict. Felix was convicted of attempting to manufacture methamphetamine, so we consider whether the jury could reasonably have found "(1) an intent to engage in criminal conduct, and (2) conduct constituting a 'substantial step' towards the commission of the substantive offense which strongly corroborates the actor's criminal intent." United States v. Joyce, 693 F.2d 838, 841 (8th Cir.1982). Accord United States v. Mazzella, 768 F.2d 235, 239 (8th Cir.), cert. denied, 474 U.S. 1006, 106 S.Ct. 528, 88 L.Ed.2d 460 (1985). With regard to the first element, evidence was presented that Felix actively learned to cook methamphetamine, toward that end supplied his instructor with methamphetamine-making chemicals and equipment, and eventually made methamphetamine at a lab near Beggs, Oklahoma. Evidence was also presented that, after DEA officials seized the Beggs lab, Felix ordered chemicals for making "a hell of a bomb," with the intent of preventing law enforcement officials from seizing his next lab. Evidence further showed that Felix subsequently ordered enough chemicals and equipment to make several kilos of methamphetamine and that, upon receipt of the items, he planned to produce the drug at a lab of his own. Concerning the second element of attempt, we note initially that this Court has held that a defendant took the requisite "substantial step" when, with knowledge of how to make methamphetamine, he ordered, received, and possessed the necessary chemicals. See Mazzella, 768 F.2d at 240. In the present case, the Government's evidence showed that, after learning how to make methamphetamine, Felix ordered the necessary chemicals and equipment, had a trailer full of the chemicals and equipment delivered to him, and paid $7,500 for the delivered goods. The Government's evidence further showed that, after the delivery, Felix bought new locks, attached the locks to the doors of the trailer bearing the chemicals and equipment, and hitched the trailer to his car. In light of this evidence, we hardly can say that a reasonable jury could not have found that beyond a reasonable doubt Felix was guilty as charged.

B.

Felix next argues that the trial court violated Federal Rule of Evidence 404(b) by admitting evidence which showed that he had been involved in the methamphetamine-producing lab near Beggs, Oklahoma. Felix denies any affiliation with the lab. ⁷

Under Rule 404(b) evidence of other crimes or wrongs is admissible to show "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Fed.R.Evid. 404(b); United States v. Lewis, 759 F.2d 1316, 1349 (8th Cir.), cert. denied, 474 U.S. 994, 106 S.Ct. 406, 88 L.Ed.2d 357 (1985). This Court has repeatedly stated that for evidence of prior bad acts to be admissible it must be relevant to a material issue other than the character of the defendant and its probative value must not be substantially outweighed by the danger it presents of unfair prejudice. See, e.g., Lewis, 759 F.2d at 1349; United States v. Gomez, 733 F.2d 69, 72 (8th Cir.1984). Our cases have further held that for such evidence to be admissible it must be clear and convincing; the Supreme Court, however, recently rejected any such requirement, saying that evidence of prior bad acts "should be admitted if there is sufficient evidence to support a finding by the jury that the defendant committed the [prior acts]." Huddleston v. United States, --- U.S. ----, 108 S.Ct. 1496, 1499 & n. 2, 99 L.Ed.2d 771 (1988). In deciding whether to admit wrongful act evidence the trial judge exercises broad discretion and we will not overturn the decision to admit such evidence absent a clear showing that the above requirements have not been met. United States v. Evans, 697 F.2d 240, 248 (8th Cir.), cert. denied, 460 U.S. 1086, 103 S.Ct. 1779, 76 L.Ed.2d 350 (1983).

Felix was indicted for knowingly and intentionally attempting to manufacture methamphetamine. "Where specific intent and guilty knowledge are elements of the crime charged, evidence of related criminal activity tending to establish those elements is generally admissible." United States v. Gocke, 507 F.2d 820, 824 (8th Cir.1974), cert. denied, 420 U.S. 979, 95 S.Ct. 1407, 43 L.Ed.2d 660 (1975). Accord Lewis, 759 F.2d at 1349. More specifically, we have repeatedly held that evidence of similar prior drug activity is admissible in drug prosecution cases because a defendant's complicity in other similar transactions serves to establish intent or motive to commit the crime charged. See, e.g., Lewis, 759 F.2d at 1349; Evans, 697 F.2d at 248-49; United States v. Lewis, 423 F.2d 457, 459 (8th Cir.), cert. denied, 400 U.S. 905, 91 S.Ct. 146, 27 L.Ed.2d 142 (1970). The evidence linking Felix to the Beggs lab supported the Government's case that Felix had the requisite knowledge and intent to make methamphetamine. This evidence showed Felix learning how to cook methamphetamine, developing a relationship with a supplier of methamphetamine-making chemicals and equipment, and ordering explosives for his future lab. In short, the evidence was relevant to a material issue.

In addition, we hold that evidence concerning Felix's association with the Beggs lab was sufficient to support a jury's finding that Felix had committed the alleged prior bad acts. Previously, using the old "clear and convincing" standard, this Court found admissible an informant's testimony regarding a defendant's previous drug transactions when the testimony was specific and unambiguous; we held that such testimony was admissible even when there was no corroborating evidence. See Evans, 697 F.2d at 249....