998 F.2d 1571 (11th Cir. 1993), 91-8663, United States v. Newsome

Docket Nº:91-8663, 91-8866.
Citation:998 F.2d 1571
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Glenda NEWSOME, Shawn Lee Rawls, Edwin Eugene Trout, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Kenneth BIRCHFIELD, James Anthony Angerami, Defendants-Appellants.
Case Date:August 31, 1993
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1571

998 F.2d 1571 (11th Cir. 1993)

UNITED STATES of America, Plaintiff-Appellee,

v.

Glenda NEWSOME, Shawn Lee Rawls, Edwin Eugene Trout,

Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellee,

v.

Kenneth BIRCHFIELD, James Anthony Angerami, Defendants-Appellants.

Nos. 91-8663, 91-8866.

United States Court of Appeals, Eleventh Circuit

August 31, 1993

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[Copyrighted Material Omitted]

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Thomas Spraley, Avondale Estates, GA, for Newsome.

C. Gordon Statham, Decatur, GA, for Rawls.

Stanley M. Baum, Bates & Baum, Atlanta, GA, for Trout.

David S. Lipscomb, Duluth, GA, for Birchfield.

John J. Lieb, Atlanta, GA, for Angerami.

Carolyn J. Adams, Asst. U.S. Atty., Atlanta, GA, for U.S.

Appeals from the United States District Court for the Northern District of Georgia.

Before BLACK and CARNES, Circuit Judges, and RONEY, Senior Circuit Judge.

CARNES, Circuit Judge:

Glenda Newsome, Shawn Lee Rawls, Edwin Eugene Trout, Kenneth Birchfield, and James Anthony Angerami appeal their convictions and sentences which resulted from their involvement in a conspiracy to manufacture and possess with intent to distribute methamphetamine. 1 Defendants raise a raft of issues, all but three of which warrant no discussion. The three issues that do warrant discussion are these: 1) the contention of Newsome, Trout, and Rawls that the district court erred in denying their motions for a mistrial based on alleged prejudice from questions the prosecutor asked; 2) the contention of all the defendants that the district court erred in calculating under U.S.S.G. § 2D1.1 the amount of methamphetamine involved in the conspiracy; and 3) Angerami's contention that the district court erred in sentencing him to the statutory ten year maximum term of imprisonment on the firearms possession charge, a term which Angerami argues exceeds the Guideline range for this offense.

In the final analysis, we vacate the sentences of Newsome, Rawls, and Trout, because the district court erred in treating as methamphetamine the gross weight of unusable sludge mixtures which contained only trace amounts of methamphetamine, and with these three defendants that error may have made a difference in the sentences. As to the other two defendants, it did not. We remand the cases of Newsome, Rawls, and Trout for resentencing in accordance with this opinion. We find no other error in the district court's judgments.

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I. BACKGROUND

In August of 1990, Wanda Palacio informed Drug Enforcement Administration agents that her recent acquisition of a large quantity of ephedrine in Puerto Rico was on behalf of defendants Angerami and Birchfield. According to Palacio, James Angerami, and Kenneth Birchfield intended to use the ephedrine in the manufacture of methamphetamine. Palacio agreed to cooperate with the Government in its investigation.

The investigation led to the Atlanta area where Angerami and Birchfield were businessmen. The Government recorded telephone calls between Palacio and Birchfield during which the purchase of additional ephedrine was discussed. The Government also monitored the movements of Angerami and Birchfield and was led to Gloria Newsome, her common-law husband Edwin Trout, and Birchfield's secretary, Shawn Rawls.

On September 25, 1990, Birchfield was arrested shortly after leaving the residence of Newsome and Trout. After being advised of his rights, Birchfield admitted that he had methamphetamine oil in his car and that he was going elsewhere to crystallize it. A container holding 4.12 kilograms of methamphetamine oil was recovered from the trunk of Birchfield's car. According to the unrebutted statement of the Government's expert chemist, this volume of oil would have yielded 4.99 kilograms of methamphetamine. That 4.99 kilogram amount was included in the sentencing computations for all defendants.

On the same day Birchfield was arrested, Angerami was arrested as he was leaving a convenience store. A small amount of a mixture of methamphetamine and cocaine was recovered from Angerami's person and a loaded Smith & Wesson .357 revolver was found in his car. In a subsequent search of Angerami's business pursuant to a warrant, agents found chemicals and apparatus for use in processing methamphetamine, as well as a bucket containing 3.08 kilograms of "whitish-yellowish solid material" containing trace amounts of methamphetamine. On the ground behind a structure on the premises, agents also found approximately 7.6 kilograms of a "brown sludge" containing trace amounts of methamphetamine. The 3.08 kilogram amount and the 7.6 kilogram amount were included as methamphetamine in the sentencing computations for all defendants.

The Government also executed a search warrant at Angerami's residence where agents found an M14 rifle capable of automatic fire and ammunition for the weapon. Angerami was convicted on a separate count for possession of the unregistered machine gun in violation of 26 U.S.C. § 5861(d).

One week into the trial of all five defendants, the district court granted Angerami and Birchfield's motion for a mistrial, but denied the mistrial motions of the other three defendants. The motions were based on the risk of prejudice resulting from the Government's questioning of Birchfield about his association with an individual whom the Government erroneously stated had been convicted on drug trafficking charges. The trial of Newsome, Trout, and Rawls continued and concluded with their convictions. After the mistrial was declared as to them, Birchfield and Angerami were retried together and convicted. All the cases were consolidated into this appeal.

The common count on which all five defendants were convicted is Count I, which alleged a conspiracy to manufacture and to possess with intent to distribute methamphetamine. See also n. 1, above. At the sentencing hearings of the defendants, the district court included the weights of the various substances we have described previously in its calculation of the total weight of methamphetamine for sentencing purposes. This led the court to conclude that the conspiracy involved at least ten kilograms of methamphetamine and that resulted in a base offense level of 36 under U.S.S.G. § 2D1.1(a)(3) and (c).

II. DISCUSSION

  1. THE MOTIONS FOR MISTRIAL OF NEWSOME, RAWLS, AND TROUT

    At the joint trial of all five defendants, the prosecutor cross-examined Birchfield about his relationship with a business associate, Bruce Hunt.

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    Q: And you also mentioned that you'd been in business with a Bruce Hunt, is that correct?

    A: I was with a--with a deal with him in a--on an oil thing, on an oil lease deal.

    Q: And how familiar are you with Bruce Hunt? How close to him are you?

    A: I've known Bruce for several years. He came in my shop for several years.

    Q: Were you aware that Mr. Hunt went to prison for drugs?

    A: I knew that he got arrested several years ago, yes, ma'am.

    Earlier in his direct testimony, Birchfield had stated that the "oil lease deal" was a partnership between Hunt, Angerami, Birchfield, and others. None of the defendants in this case, except for Angerami and Birchfield, were mentioned as having been involved either in this "deal" or with Hunt in any other way.

    There was no contemporaneous objection to this line of questioning. However, at the end of the trial day, Angerami moved for a mistrial, a motion subsequently joined by all of the other defendants. Two days later at the hearing on this motion, the prosecutor revealed that, in the interim, she had learned that Hunt had in fact never been convicted. Holding that the questioning had been improper, the court declared a mistrial for Angerami and Birchfield:

    There is no doubt as to the impropriety of the evidence. I think it's very clear as to Mr. Birchfield; that is, because he was the one that was asked about it. It's less clear in my judgment, the connection with the jury as to Mr. Angerami, but it's there because Mr. Hunt at least was one of the persons with whom they were all--there was testimony they were business partners.

    However, the court denied the motion as to the other three defendants, because the court found that "there's been no testimony from anybody that any of the other three defendants have any connection whatsoever or have had any connection whatsoever with Mr. Hunt." Newsome, Rawls, and Trout contend that it was error for the district court not to grant a mistrial as to them.

    The former Fifth Circuit passed on to us "the long established rule that a defendant's guilt may not be proven by showing he associates with unsavory characters." United States v. Singleterry, 646 F.2d 1014, 1018 (5th Cir. Unit A June 1981), cert. denied, 459 U.S. 1021, 103 S.Ct. 387, 74 L.Ed.2d 518 (1982); see also United States v. Ochoa, 609 F.2d 198, 204-06 (5th Cir.1980). However, "[t]he decision whether to grant a mistrial is within the sound discretion of the trial court and will not be reversed unless the record reflects that the court abused that discretion." United States v. Saldarriaga, 987 F.2d 1526, 1531 (11th Cir.1993).

    We find that the district court was correct in concluding that no evidence linked Newsome, Rawls, or Trout with Bruce Hunt. Indeed, Newsome concedes in her brief that "no evidence connected Newsome with Mr. Hunt." The prosecutor's reference to Hunt was confined to the above-quoted colloquy. The intervening testimony between this colloquy and the declaration of a mistrial was limited to the conclusion of Birchfield's cross-examination and the voir dire of the defense's expert, Dr. James Woodford. The subject of the "oil lease deal" involving Hunt was not revisited during the intervening...

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