U.S. v. Albers

• Decision Date: 23 August 1996
• Docket Number: No. 95-3023,95-3023
• Citation: 93 F.3d 1469
• Parties: 45 Fed. R. Evid. Serv. 699 UNITED STATES of America, Plaintiff-Appellee, v. Clayton ALBERS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1469

93 F.3d 1469

45 Fed. R. Evid. Serv. 699

UNITED STATES of America, Plaintiff-Appellee, v. Clayton ALBERS, Defendant-Appellant.

No. 95-3023.

United States Court of Appeals Tenth Circuit.

Aug. 23, 1996.

D. Blair Watson, Assistant United States Attorney (Jackie N. Williams, United States Attorney, with him on the brief), Wichita, Kansas, for Plaintiff-Appellee.

Susan L. Foreman, Assistant Federal Public Defender (Michael G. Katz, Federal Public Defender, with her on the brief), Denver, Colorado, for Defendant-Appellant.

Before PORFILIO, HOLLOWAY and MURPHY, Circuit Judges.

HOLLOWAY, Circuit Judge.

This is a timely direct appeal from the defendant/appellant's conviction and life sentence for conspiracy to manufacture methamphetamine with intent to distribute in violation of 21 U.S.C. § 846; possession or distribution of ephedrine knowing, or having reasonable cause to believe, that it would be used to manufacture methamphetamine, 21 U.S.C. § 841(d)(2); and manufacture of methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). We have jurisdiction under 28 U.S.C. § 1291.

Defendant Clayton Albers was originally indicted on February 24, 1993, along with Michael Marino, Janet Raisner, Patrick Cambron, Joe Vergilio, Jack Francis, and Anthony Feher. James Randa was added as a conspirator in the second superseding indictment. All seven of the others indicted eventually entered guilty pleas and defendant Albers proceeded to trial in November and December of 1993. That first trial resulted in a mistrial because the jury could not reach a verdict. In a second trial in September 1994, defendant Albers was convicted on all three counts of a third superseding indictment. He received a life sentence and now brings this appeal.

I FACTUAL BACKGROUND

A

The government presented evidence at trial tending to show that the original defendants, who all had entered guilty pleas, were involved in a venture to manufacture methamphetamine for distribution. Patrick Cambron, a nephew of defendant Albers, was the first prosecution witness. Cambron testified that while incarcerated in California in 1990, he was told by another inmate some of the basics of making methamphetamine. Cambron decided to try to get involved in manufacturing methamphetamine after his release.

To do so, Cambron needed to find a source for ephedrine, a precursor chemical. In February 1991, shortly after his release, Cambron attended the wedding of his brother in Houston. Defendant Albers, who lived in Wichita, Kansas, and had not seen Cambron in several years, also attended the wedding. Defendant and Cambron conversed at the wedding reception. Cambron testified that he learned then that defendant Albers had started a fertilizer business in Wichita called Agri-Data. During this conversation Cambron brought up the possibility of obtaining ephedrine to be used in the manufacture of methamphetamine. Cambron told defendant that after manufacture, each pound of methamphetamine would be worth about $10,000. Cambron testified that defendant said he was interested and that if Cambron came up with the money he should call defendant. (XII R. at 80-82.) Cambron told defendant that as a legitimate reason for ordering ephedrine, the cover story could be that it could be used in poultry feeds. (Id. at 83.)

Cambron testified that he contacted others and raised ten thousand dollars from Michael Marino and Jack Francis with which to purchase ephedrine. Cambron and Marino flew to Wichita to meet with defendant. (Id. at 86-92.) Upon first arriving in Wichita, Cambron met with defendant at a restaurant. Cambron said that he agreed that defendant would be paid $50,000 and that Stuber, a business partner of defendant in Agri-Data, would be paid $15,000 out of the proceeds if the ephedrine could be obtained. Stuber later joined them at the restaurant. (Id. at 94-95.) Among other things, defendant Albers, Cambron, and Stuber discussed what explanation could be given for ordering quantities of ephedrine, including Cambron's idea of saying it was to be used as poultry feed and the suggestion discussed by defendant and Stuber that they could say it was to be used in the fertilizer business as a plant growth regulator. (Id. at 92-96.) Later Cambron introduced defendant to Marino, and $10,000 was given to defendant by Marino for the cost of the chemical. (Id. at 98.) Marino soon returned to his home in California, but Cambron stayed in Wichita at defendant's apartment for several weeks to obtain the chemical, during which time he was frequently in the offices of Agri-Data in Wichita.

Cambron began trying to find a chemical company from which to purchase ephedrine. Cambron tried telling one company that he wanted ephedrine to use in poultry feed, but that company advised him that the FDA did not approve of that use of ephedrine. Cambron eventually contacted a chemical supplier in New Jersey which said that it could provide ephedrine. Defendant then made arrangements by telephone to initiate an order for four drums of ephedrine, for which a company check from Agri-Data was issued. Defendant signed a form indicating he was aware that ephedrine was a precursor chemical subject to drug trafficking laws and that the ephedrine was to be used as a plant growth regulator in the company's business. (Id. at 316-18; XIV R. at 930.) The supplier contacted the DEA, which told him to fill the order but to let the DEA know if a second order was placed.

The ephedrine was shipped to Agri-Data in four barrels in mid-May 1991. Cambron had gone several times to Agri-Data's facility in Belle Plain where the fertilizer plant and storage tanks were. (Id. at 102.) Cambron and defendant were present when the delivery was made to the Belle Plain facility, and Cambron testified that he immediately removed the identifying labels from the barrels to prevent employees from speculating about why the company had ordered ephedrine. In court, Cambron identified the four drums which were exhibits. (XII R. at 113.) Cambron said that in the middle of the following night, Cambron and defendant went back to the plant and, according to Cambron, repackaged the chemical in cardboard boxes. Cambron said they checked the barrels for tracers or tracking devices. Cambron said defendant Albers held each drum and tipped it up, and Cambron sifted through it with his hands to make sure there was nothing in the powder. They refilled the barrels with potash and a very small amount of ephedrine to provide credence for the cover story that the ephedrine was being used in fertilizer. (XII R. at 111-18.) (Cambron's testimony that defendant Albers returned with him late at night to the plant and went through the drums was flatly denied by defendant.) (XIV R. 939.)

Cambron then shipped the boxes of ephedrine to Marino in California and traveled there separately. The ephedrine was used by Francis and perhaps others to manufacture a large quantity of methamphetamine. Cambron was involved in distribution of much of the methamphetamine manufactured from the ephedrine. Cambron eventually sold about 80 pounds of methamphetamine for a total of approximately $800,000. (Id. at 128-29, 212.) Cambron testified that he sent, directly or through others involved in the scheme, $37,000 in eight separate wire transfers to defendant. (Id. at 134-37.) Cambron also arranged for the shipment to defendant of a Federal Express package containing $15,000. In addition, Cambron testified that defendant traveled to California at least once to receive more of the proceeds, getting about $20,000 on that occasion. (Id. at 132-34, 139-42.) Mike Marino and Joe Vergilio gave testimony regarding their involvement in some of these payments to defendant. As discussed below, there was also evidence introduced during cross-examination of the defendant that he received a cashier's check for $5,000 on another occasion. (XIV R. at 984-986.)

Two former employees of Agri-Data testified that during the summer of 1991 defendant brought a large amount of cash to the office. Sarah Downey was the bookkeeper for Agri-Data from the time of its formation in late 1990 until March 1992. (XIII R. at 471-72.) Ms. Downey testified that the company was experiencing constant cash shortages during the spring and summer of 1991. (Id. at 476.) She said that once during this time she told defendant that some bills were due, including one for a purchase of fertilizer, and that the company did not have the funds to pay these bills. Defendant told her he would take care of it. He left the office and returned a short time later with a large amount of cash, which she estimated to be about $15,000. She testified that defendant said he did not want to deposit the cash into the bank because the bank would have to report a cash deposit of over $10,000. (Id. at 477-78.) She said that defendant asked several employees if they would write checks on their personal accounts and take some of the cash so that the company could deposit their checks instead of cash. A customer's check was received shortly thereafter, however, and the idea of taking checks from employees was never implemented. (Id. at 478-79, 482.)

A few weeks after receipt of the ephedrine, Cambron was arrested in California for attempting to trade methamphetamine for marijuana. Released on bond, Cambron continued selling methamphetamine. Cambron returned to Wichita sometime in late July or early August, 1991, and stayed with defendant for about a week. Cambron said that he, defendant and Stuber discussed a second purchase of ephedrine during this time and planned to try to buy twice as much as they had the first time. (XII R. at 143-46.) Cambron testified that he later sent $10,000 to defendant for a second purchase. He said that he arranged through Joe Vergilio to have a friend of Vergilio's, Vickie Arias, deliver the money to Wichita in late August, 1991. (Id. at 149-153.) Cambron said that he talked with ...