U.S. v. Haar, 90-2023

• Decision Date: 22 April 1991
• Docket Number: No. 90-2023,90-2023
• Citation: 931 F.2d 1368
• Parties: 32 Fed. R. Evid. Serv. 1250 UNITED STATES of America, Plaintiff-Appellee, v. Stephen Thomas HAAR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1368

931 F.2d 1368

32 Fed. R. Evid. Serv. 1250

UNITED STATES of America, Plaintiff-Appellee, v. Stephen Thomas HAAR, Defendant-Appellant.

No. 90-2023.

United States Court of Appeals, Tenth Circuit.

April 22, 1991.

Robert J. Gorence, Asst. U.S. Atty. (William L. Lutz, U.S. Atty., with him on the brief), Albuquerque, N.M., for plaintiff-appellee.

Richard J. Knowles, Albuquerque, N.M., for defendant-appellant.

Before BRORBY and McWILLIAMS, Circuit Judges, and SPARR, ^* District Judge.

BRORBY, Circuit Judge.

Stephen Thomas Haar ("Defendant") appeals his conviction by jury trial for the manufacture of methamphetamine in violation of 21 U.S.C. Sec. 841(a)(1) and 21 U.S.C. Sec. 841(b)(1)(C), raising the following four issues: (1) "whether the trial court erred in refusing to give a requested instruction on a lesser included offense of simple possession of methamphetamine"; (2) "whether the court erred in improperly admitting evidence of activity outside the period of time charged in the indictment"; (3) "whether the court erred in refusing to grant a mistrial following acts of prosecutorial misconduct and whether such misconduct constituted cumulative error"; and (4) "whether the court erred by calculating the guideline level for this offense using projections of the quantity of methamphetamine which could have [been] made based on the chemicals found at a residence alleged to have been rented by the appellant." We affirm.

I.

On December 25, 1988, the Drug Enforcement Agency ("DEA") in Albuquerque, New Mexico, received an anonymous tip that a methamphetamine laboratory was in operation at 5716 Aztec Rd., N.E. The informant indicated the owner of the residence, Larry Allen ("Allen"), and Defendant had been operating the laboratory at this address for approximately three months.

On that same day, two DEA agents went to the reported address. Once on the premises, the agents detected a strong odor, known by them to be associated with the manufacture of methamphetamine, emanating from within the residence. One of the agents then noticed two bags of garbage, which had been left at the curbside in front of the house, and placed the bags inside his car for later examination. Inside the garbage bags, DEA agents discovered, inter alia, a plastic bag containing a total of 14.1 grams net weight of the substance methamphetamine.

Based on their observations, the DEA agents executed a search warrant at 5716 Aztec Rd., N.E., on December 27, 1988. Inside the house the agents discovered a room containing large amounts of chemicals, glassware and hardware commonly used in the production of methamphetamine. Additional controlled substances were seized during the search, including trace amounts of methamphetamine, phenyl acetone and several gallons of various wash solutions. Also found in the house were a .12 gauge shotgun and ammunition. Forensic experts with the Albuquerque Police Department identified fingerprints on several of the items found during the search as the Defendant's. ¹

Prior to Defendant's sentencing, ² a stipulation agreement was entered into between Defendant and the government, which provided in relevant part:

1. Frank Lucero, an expert witness in forensic chemistry and an employee of the Albuquerque Police Department, if called as a witness, would testify as follows:

....

2. Based upon the foregoing data and personal inspection, Mr. Lucero is of the opinion that the lab site located at 5716 Aztec N.E. could have manufactured one pound of pure methamphetamine on December 27, 1988.

3. The basis of this opinion is using the "P2P" method of chemical synthesis, and using only those chemical precursors on site at 5716 Aztec N.E. on December 27, 1988, the amount of methylamine (exhibit 5) was sufficient for only the manufacture of approximately one pound of pure methamphetamine.

The court based its computation of Defendant's offense level on the parties' stipulation that the amount of methylamine found at 5716 Aztec Rd., N.E. on December 27, 1988, was sufficient to produce one pound pure methamphetamine. The probation department also used the stipulation in its preparation of an addendum to the original presentence report. The addendum, copies of which were provided to Defendant and his counsel prior to the sentencing hearing, reduced Defendant's base offense level from 36 to 26. This adjusted offense level, along with Defendant's placement in criminal history category III, ³ produced a guideline imprisonment range of 78 to 97 months, pursuant to Ch. 5, Part A (Sentencing Table) of the United States Sentencing Commission, Guidelines Manual (Nov.1989) ("U.S.S.G."). At the sentencing hearing, however, the court granted Defendant a reduction of two offense levels for his affirmative acceptance of responsibility for the offense pursuant to U.S.S.G. Sec. 3E1.1(a). The court then amended the addendum to the presentence report to reflect Defendant's total base offense level of 24, and noted the applicable guideline range, again in accordance with U.S.S.G. Ch. 5, Part A, to be 63 to 78 months' imprisonment.

After hearing counsel's statement on behalf of Defendant, the court sentenced Defendant to 66 months' imprisonment followed by a term of 3 years supervised release.

II.

A. Lesser-Included-Offense Instruction

Defendant first contends the trial court erred in refusing to give the requested lesser-included-offense instruction of simple possession. In support of this contention, Defendant argues, "[t]he theory of the defense was that the methamphetamine was being manufactured by Larry Allen, and that if [Defendant] had any involvement at all, it was in possessing methamphetamine manufactured by Mr. Allen."

When reviewing a claim of error relating to jury instructions, we review the instructions as a whole. Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400-01, 38 L.Ed.2d 368 (1973). And "[a]lthough a criminal defendant is entitled to an instruction regarding his theory of the case, a trial judge is given substantial latitude and discretion in tailoring and formulating the instructions so long as they are correct statements of law and fairly and adequately cover the issues presented." United States v. Pack, 773 F.2d 261, 267 (10th Cir.1985). Accord, United States v. Bryant, 892 F.2d 1466, 1468 (10th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 3220, 110 L.Ed.2d 667 (1990); United States v. Pinto, 838 F.2d 426, 435-36 (10th Cir.1988). Moreover, a defendant will not be entitled to an instruction which lacks "a reasonable legal and factual basis." Bryant, 892 F.2d at 1468. See also, United States v. Scafe, 822 F.2d 928, 932 (10th Cir.1987) ("A defendant is entitled to jury instructions on any theory of defense finding support in the evidence and the law.").

In Fitzgerald v. United States, 719 F.2d 1069, 1071 (10th Cir.1983), we set forth the following factors that must be satisfied before a defendant is entitled to a lesser-included-offense instruction:

1. A proper request.

2. The lesser included offense consists of some, but not all, of the elements of the offense charged.

3. The element differentiating the two offenses is a matter in dispute.

4. A jury could rationally convict the defendant of the lesser offense and acquit of the greater offense.

Id. at 1071. "Failure to meet any part of the test is fatal for the defendant." United States v. Joe, 831 F.2d 218, 219 (10th Cir.1987), cert. denied, 484 U.S. 1072, 108 S.Ct. 1043, 98 L.Ed.2d 1006 (1988).

It is undisputed that a request for the lesser-included-offense instruction was properly made, and that the offense of simple possession includes some, but not all, of the elements of the charged offense--unlawful manufacture of methamphetamine. Therefore, the first and second factors of the Fitzgerald test are satisfied.

Defendant asserts the third and fourth Fitzgerald factors have also been satisfied in that "there was evidence of the lesser included offense of possession of methamphetamine ... and proof on the elements differentiating the two offenses was sufficiently in dispute so that the jury could consistently find defendant innocent of manufacture and guilty of possession...." Defendant raises, inter alia, the following arguments as the basis for his assertion: that while "the components necessary for a methamphetamine lab were found at 5716 Aztec NE in Albuquerque, New Mexico ... this was not a working lab"; that "fingerprints identified as having belong[ed] to Mr. Haar were found on three objects located, not in the area that had been testified to as having been the laboratory, but in a separate room described as being the kitchen of the residence"; that "[a]side from 14.1 grams of yellowish powder residue found in the garbage on the exterior of 5716 Aztec NE, no methamphetamine was found"; and that "[a]s credibility of the witnesses was in issue, the jury is free to believe or disbelieve any portion of their testimony.... [Thus,] [e]very aspect of the Government's case was in dispute".

We first address Defendant's argument that the elements differentiating the two offenses were sufficiently in dispute. " 'Absent some evidence to counter the strong inference of [the charged offense] ... the issue is not elevated to a truly disputed one.' " Joe, 831 F.2d at 220 (quoting United States v. Rogers, 504 F.2d 1079, 1084 (5th Cir.1974), cert. denied, 422 U.S. 1042, 95 S.Ct. 2655, 45 L.Ed.2d 693 (1975)). Here, the trial court, properly focused on the third Fitzgerald factor and made the following determination in regard to the existence of such a dispute:

THE COURT: I think the way the evidence was presented, there really was not a situation in which--or a dispute as to the evidence that would affect a possession charge and the evidence that would affect a manufacturing charge.

... The question is whether there is a, as I understand it the third step under Fitzgerald, is whether there really is a dispute or contest over evidence that...