U.S. v. Baker
Decision Date | 27 September 1996 |
Docket Number | 95-2466,Nos. 95-2257,s. 95-2257 |
Parties | 45 Fed. R. Evid. Serv. 806 UNITED STATES of America, Appellee, v. Douglas Allen BAKER, Appellant. UNITED STATES of America, Appellee, v. Leroy Charles WHEELER, Appellant. |
Court | U.S. Court of Appeals — Eighth Circuit |
Virginia Villa, Assistant Federal Public Defender, Minneapolis, MN, argued, for appellant Baker.
Neal J. Shapiro, argued (Scott F. Tilsen, on the brief), Minneapolis, MN, for appellant Wheeler.
Nathan P. Petterson, Assistant U.S. Attorney, Minneapolis, MN, argued, for appellee.
Before McMILLIAN, LAY and HANSEN, Circuit Judges.
Douglas Allen Baker and Leroy Charles Wheeler appeal from final judgments entered in the District Court 1 for the District of Minnesota, upon a jury verdict, finding each guilty of aiding and abetting the other in knowingly possessing a toxin for use as a weapon in violation of 18 U.S.C. §§ 175, 2. The district court sentenced Baker and Wheeler each to 33 months imprisonment, 3 years supervised release and a special assessment of $50. For reversal, Baker argues the district court erred in denying his motion to sever and in admitting into evidence certain hearsay statements. For reversal, Wheeler argues the district court erred in admitting into evidence co-conspirator's statements. Both defendants also argue 18 U.S.C. § 175 is unconstitutional, the district court erred in admitting into evidence certain documents, the evidence was insufficient to support the jury verdict, and the district court erred in denying their motion for jury selection from a particular division. For the reasons discussed below, we affirm Wheeler's conviction and sentence, but we reverse Baker's conviction and remand his case to the district court for further proceedings.
On May 21, 1992, Colette Baker, the wife of defendant Baker, went to the Pope County, Minnesota, sheriff's office. She appeared to be very nervous. She talked to the receptionist, Joan Holtberg. Colette Baker was carrying a small red coffee can. Inside the coffee can were a baby food jar containing a white powder, a fingernail polish bottle containing a greenish gel, a pair of rubber gloves, and a handwritten note. 2 Colette Baker took each of the items out of the coffee can and showed them to Holtberg. Colette Baker referred to the contents of the coffee can as "Maynard" and told Holtberg that she believed that the powder and gel were only dangerous if they were mixed together.
The sheriff's office turned over the coffee can and its contents to the FBI for analysis. The FBI found two of Wheeler's fingerprints inside one of the rubber gloves and one of his fingerprints on the bottom of the coffee can. The United States Army Medical Research Institute of Infectious Diseases identified the white powder as ricin. Ricin is a toxin derived from the castor bean plant and is extremely deadly. There is no known antidote for ricin poisoning. FBI special agent Thomas Lynch testified that the process for producing ricin from castor beans is relatively simple and is described in various publications which are commercially available. The baby food jar contained about .7 gram of 5% pure ricin, which, according to a government witness, was enough to kill 126 people. The greenish gel was a mixture of dimethyl sulfoxide (DMSO), a solvent which can penetrate the skin, and aloe vera gel, which is used in cosmetics and hair care products. According to Lynch, DMSO could be combined with ricin to carry the ricin through the skin; however, Lynch did not believe that DMSO would be an effective carrier unless the skin was broken and the ricin Scott Loverink testified that he had known Wheeler since the late 1970s but had never met Baker. Loverink testified about conversations he had had with Richard Oelrich and Dennis Bret Henderson in the early 1990s about ordering castor beans through the mail, processing the castor beans into ricin, and using the ricin to kill people. According to Loverink, in the summer of 1991, Henderson told him that he (Henderson) had ordered some castor beans and had planted them in Wheeler's yard. Henderson also introduced Loverink to Oelrich. According to Loverink, Oelrich referred to "bureaucratic flu," identified various government employees as potential targets, and described the advantages of ricin over other poisons and how ricin could be used with DMSO to carry the ricin through the skin. Henderson also discussed how ricin could be used with DMSO and left in places where people would touch it.
could enter the body through cuts or scratches.
According to Loverink, Oelrich and Henderson referred to ricin as "Maynard." Loverink did not initially know why they did so. However, Loverink later received copies of a newsletter called the CBA Bulletin and noticed that the newsletter contained advertisements for castor beans and instructions for making ricin which could be purchased from Maynard Campbell in Ashland, Oregon. Henderson told Loverink that was why they called ricin "Maynard."
Loverink testified that sometime during the summer of 1991, possibly in August, Henderson left a baby food jar containing ricin in his (Loverink's) workshop for about two weeks. Henderson explained to Loverink that he did not want to store it because there were small children around his house.
In July 1994 a federal grand jury charged Baker and Wheeler with one count of aiding and abetting one another in knowingly possessing a toxin, ricin, for use as a weapon, in violation of 18 U.S.C. §§ 175, 2. Following their arrests, FBI special agent Daniel Lund interviewed them. According to Lund, Baker admitted possessing a powder he called "Maynard" two to three years before, but explained that he intended to use it as an insecticide by sprinkling it on cabbage plants in his garden (he did not do so). Baker denied receiving the powder from Henderson. Baker said that the powder was in a coffee can and that there were rubber gloves in the coffee can; he could not remember any specific instructions for its use except not to touch or inhale it or who had referred to the powder as "Maynard."
Lund also interviewed Wheeler. The interview was reduced to writing and Wheeler signed the written statement. The written statement was introduced into evidence at the trial (as Government Exhibit 12). Wheeler said that he was aware of a toxin called "Maynard" made from castor beans and that he had heard Oelrich, Henderson and Duane Baker, defendant Baker's father, discuss it. Wheeler had heard Oelrich and Henderson discuss mixing "Maynard" with DMSO and aloe vera and he also knew that DMSO is quickly absorbed into the skin. Wheeler knew about the advertisements for castor beans in the CBA Bulletin and that Oelrich had received the CBA Bulletin. Wheeler also knew that in April 1991 Oelrich had ordered castor beans from Maynard Campbell and that the castor beans had been sent to his (Wheeler's) house. Wheeler gave the castor beans to Henderson. According to Wheeler, Henderson processed the castor beans into ricin in his (Wheeler's) shed. Henderson wore rubber gloves and a face mask during the process. Wheeler described the ricin as a white powdery substance. Wheeler knew that it was a deadly poison and he had heard Oelrich and Henderson discuss using "Maynard" to kill people. Wheeler said that Henderson put the powder in a baby food jar, which he (Henderson) then put inside a coffee can and stored in Wheeler's shed for several months.
Pre-trial motions, including motions to sever, to dismiss the indictment and for trial in, or for a jury drawn from, the division where the offense charged occurred, were denied. The offense charged occurred in Pope County, Minnesota, which is in Division 6 of the District of Minnesota. Then-Chief Judge Diana E. Murphy, in Division 4, had originally been assigned to preside over the trial. However, upon Judge Murphy's appointment
to this court, the case was reassigned to Judge Renner, in Division 3. Jurors for trials in Division 3 are also drawn from Division 1. The jury found defendants guilty. The district court sentenced each defendant to 33 months imprisonment, 3 years supervised release and a special assessment of $50. These appeals followed. 3
Baker argues that his case should not have been joined with Wheeler's and that the district court abused its discretion in denying his motion for severance. He argues that he was prejudiced by the joinder because the jury heard evidence that was admissible only against Wheeler, including co-conspirator's statements and Wheeler's inculpatory statement to the FBI.
Assuming for purposes of analysis that defendants were properly joined, Fed.R.Crim.P. 8(b) ( ), we think this is the rare case in which severance should have been granted pursuant to Fed.R.Crim.P. 14 because there is a serious risk that the joint trial prevented the jury from making a reliable judgment about guilt or innocence. Zafiro v. United States, 506 U.S. 534, 539, 113 S.Ct. 933, 938, 122 L.Ed.2d 317 (1993). This is because evidence that the jury should not have considered against Baker and that would not have been admissible if Baker had been tried alone was admitted against Wheeler, Baker's co-defendant. Most of the evidence was properly admissible only against Wheeler. Baker and Wheeler were not charged with conspiracy. As discussed below, the conspiracy alleged involved Wheeler, Henderson and Oelrich, but not Baker. Co-conspirator's statements that the jury should not have considered against Baker and that would not have been admissible against Baker if Baker had been tried alone were admitted against Wheeler. Id. As discussed below, the...
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