932 F.2d 868 (10th Cir. 1991), 90-3000, United States v. Wright

Docket Nº:90-3000, 90-3038.
Citation:932 F.2d 868
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Norman D. WRIGHT, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. George W. KIRBY, Jr., Defendant-Appellant.
Case Date:May 03, 1991
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 868

932 F.2d 868 (10th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,

v.

Norman D. WRIGHT, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

George W. KIRBY, Jr., Defendant-Appellant.

Nos. 90-3000, 90-3038.

United States Court of Appeals, Tenth Circuit

May 3, 1991

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Rehearing Denied July 11, 1991.

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John C. Humpage, Topeka, Kan., for defendant-appellant Wright.

Marilyn M. Trubey, Asst. Federal Public Defender (Charles D. Anderson, Federal Public Defender, with her on the brief), for defendant-appellant Kirby.

Kurt J. Shernuk, Asst. U.S. Atty., Topeka, Kan. (Lee Thompson, U.S. Atty., with him on the brief), for plaintiff-appellee.

Before HOLLOWAY, SEYMOUR, and ANDERSON, Circuit Judges.

SEYMOUR, Circuit Judge.

On April 4, 1989, defendants Norman D. Wright and George W. Kirby were jointly indicted for offenses relating to their participation in drug trafficking in Kansas. 1 Count I of the indictment charged both defendants with conspiring to distribute cocaine in violation of 21 U.S.C. Sec. 846 (1988). Count II charged the defendants with attempting to distribute cocaine, also in violation of 21 U.S.C. Sec. 846. Count III charged Kirby with carrying a firearm in relation to a drug trafficking offense in violation of 18 U.S.C. Sec. 924(c)(1), and Count IV charged Wright with the same. Count V charged Kirby with being a felon in possession of a firearm in violation of 18 U.S.C. Sec. 922(g)(1), and Count VI charged Wright with the same. Count VII charged Wright with distribution of methamphetamine in violation of 21 U.S.C. Sec. 841(a)(1). On June 26, 1989, a superseding indictment was returned, with Count I amended to extend the conspiracy to include the manufacture and distribution of methamphetamine, as well as the distribution of cocaine. The other counts remained unchanged. After a five-day jury trial, 2 defendants were convicted on all counts of the superseding indictment. Both defendants were sentenced to aggregate terms of 180 months. On appeal,

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defendants seek reversal of their convictions and sentences, arguing that the district court committed numerous errors. We disagree, and affirm.

I.

FACTUAL BACKGROUND

"In setting forth the circumstances giving rise to this appeal, we view the evidence in the light most favorable to the jury's verdict." United States v. Kendall, 766 F.2d 1426, 1429 (10th Cir.1985), cert. denied, 474 U.S. 1081, 106 S.Ct. 848, 88 L.Ed.2d 889 (1986).

On January 9, 1989, Robert Maddox approached Agent Robert Farrell of the FBI and volunteered to supply information concerning drug activity in Topeka, Kansas. At that time he named several people who he said were involved in drug dealing, including defendants Wright and Kirby. Maddox told Agent Farrell that he had obtained methamphetamine and cocaine from Wright for two years--for the first year and a half through a middleman named Al Hamilton, and for the previous six months directly from Wright. Maddox also said that he had been operating a methamphetamine lab with a number of partners at Hamilton's house in Jefferson County, Kansas, and that Wright had financed the lab in order to create a source for Wright's methamphetamine distribution.

Four days after their first meeting, Maddox again met with Agent Farrell and told him that the methamphetamine lab had been dismantled and was in his possession. He explained that the methamphetamine "cook", Rudy Perez, had become disturbed that he had not received any money for his efforts, and that he had gone to Hamilton's house, tied Hamilton up, and stolen several items from the house. Hamilton eventually broke loose and called both Maddox and Kirby for help. When Maddox arrived at the house, he found Kirby already there, armed with a semi-automatic handgun. Kirby left a note for Hamilton demanding that Hamilton never call him again and that Hamilton make sure his telephone bill did not reflect a call to Kirby's residence. Maddox turned over to the FBI various chemicals and items that the Drug Enforcement Agency found to be components of a P2P methamphetamine lab. 3

Agent Farrell subsequently agreed to use Maddox as an informant, and they arranged for Maddox to attempt to purchase drugs from Wright. Wired with a tape recorder, Maddox met with Wright several times in February and March at Houlihan's restaurant in north Topeka to discuss the potential for a deal. On February 8, Maddox and Wright met to discuss the availability of cocaine and methamphetamine. Wright stated that he didn't have either at the time and that the only coke available was "junk" and not of the quality he would sell to a friend. In response to Maddox's inquiry as to the availability of methamphetamine, Wright said that another methamphetamine lab had shut down before Maddox's had been dismantled and thus he did not have any.

Ten days later, Maddox again met Wright at Houlihan's. During their conversation, Kirby entered the restaurant and joined the men, carrying a Merck Index. 4 He asked Maddox whether a statement made by a defendant in the Jefferson County methamphetamine bust had implicated him. Wright asked the same question. Maddox also asked Wright about the availability of methamphetamine at this meeting and Wright replied that some might be available by the weekend and that Maddox should check back with him. When Maddox asked Wright whether Wright wanted him to go to Kansas City to pick up hydriodic acid (a chemical used to make methamphetamine), Wright responded that he still was interested but that Maddox should come back later for a final answer.

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On March 3, Wright was observed in the parking lot of Houlihan's restaurant removing something from his car, entering Gid Dyche's car and driving with Dyche for a short time before returning to the parking lot. Later that day, Dyche sold to Maddox methamphetamine that had been supplied by Wright. On March 7, a deal was struck where Dyche would sell cocaine, again supplied by Wright, to an undercover FBI agent, Michael Jenkins, posing as a friend of Maddox. The deal was set for March 21. Dyche, Wright and Kirby met on March 20 at Houlihan's and departed together. Later that day, Dyche called Agent Jenkins and told him he could supply him with a pound and a half of cocaine. They arranged to meet at a restaurant in Rossville, Kansas, at noon the following day.

Prior to the deal, Maddox described to Agent Farrell the way in which the transaction would take place. He said that Wright would park his vehicle north of Rossville and wait with the cocaine. Dyche would meet Agent Jenkins to provide him with a sample and to make certain Jenkins had the money for payment. Dyche then would drive to Wright's location, obtain one half pound of cocaine, return to Agent Jenkins for payment and repeat this process for the sale of the remaining pound. Maddox also told Agent Farrell that if Wright brought anyone with him it would be Kirby, for protection.

When Agent Jenkins met Dyche in Rossville, Dyche told him that the deal would be held in Silver Lake instead, the next town east of Rossville. In Silver Lake, Dyche supplied Agent Jenkins with four ounces of cocaine and Agent Jenkins told him that the quality was acceptable. Dyche immediately called Wright at Houlihan's and Wright told him he would meet Dyche at the location outside Silver Lake they had previously agreed upon, in order to collect the money for the quarter ounce and to distribute the remainder of the drug. Dyche was then arrested. After the call, Wright and Kirby left Houlihan's in separate vehicles and drove towards Silver Lake. Kirby parked on a dirt road approximately three miles from Silver Lake and Wright continued on for about another half mile and stopped in front of a trailer home. Kirby was situated so that he faced the only intersection that led to Wright's location.

After Dyche's arrest, the FBI agent drove his vehicle to Kirby's location and arrested him as he sat in his car. As Kirby was removed from the car, a handgun fell from his lap onto the ground. A subsequent search of the car uncovered numerous firearms. Wright was arrested as he stood between his vehicle, a pickup truck with its hood raised, and the trailer home. A rifle was discovered eight feet from Wright hidden in a pipe. The agents obtained consent to search from the owner of the trailer and found an envelope of cocaine inside the trailer's skirting. When Agent Farrell left to return to Topeka to obtain a search warrant for Wright's truck, Agent Walker got into the truck to see whether he could start it or if it needed a tow. When he opened the door, Agent Walker noticed a camera case containing a large sum of money in the map pocket of the driver's door. The case was seized and Agent Walker counted $8,750. The rest of the truck was searched when Agent Farrell returned with the search warrant.

II.

VARIANCE

Both defendants contend that an impermissible variance occurred when the Government's evidence at trial proved the existence of multiple conspiracies, rather than the one broad conspiracy charged in the first superseding indictment. Pointing to the fact that the district court noted at the charging conference that it was "very difficult" to find evidence linking Kirby to the manufacture and distribution of methamphetamine, Kirby argues that the court impermissibly varied the indictment when it instructed that the jury could find him guilty if it found he was a conspirator solely in the distribution of cocaine. He contends that the jury should have been instructed to acquit if it did not find that Kirby was a participant in the single, overall

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conspiracy to manufacture...

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