U.S. v. Benbrook, 93-9089
| Decision Date | 02 December 1994 |
| Docket Number | No. 93-9089,93-9089 |
| Citation | 40 F.3d 88 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. James Robert BENBROOK, Jr. and Steven Dwain Sexton, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
John H. Hagler, Dallas, TX, for Benbrook.
Thomas W. Mills, Jr., Dallas, TX, for Sexton.
Michael Snipes, Asst. U.S. Atty., Paul E. Coggins, U.S. Atty., Dallas, TX, for appellee.
Appeals from the United States District Court For the Northern District of Texas.
Before POLITZ, Chief Judge, GOLDBERG and DUHE, Circuit Judges.
James Robert Benbrook, Jr. and Steven Dwain Sexton appeal their convictions for unlawful possession of a listed chemical, 21 U.S.C. Sec. 841(d)(2); Benbrook also appeals his conviction of using a firearm in relation to a drug trafficking offense, 18 U.S.C. Sec. 924(c)(1). We affirm.
In October of 1992 the Drug Enforcement Agency received a confidential tip, which was reinforced a few weeks later by additional information from the same unnamed informant, about a clandestine drug laboratory. In December 1992, DEA agents performed a "creep" 1 on Benbrook's home in Forney, Texas in an effort to determine whether the manufacture of methamphetamines was taking place. That creep disclosed no telltale odors, sounds, or visible evidence of the manufacture of the contraband. In January 1993, following receipt of further information of suspicious activity from the same source, by now identified as Benbrook's ex-girlfriend Mary Carol Taylor, the DEA performed a second creep which proved to be as unproductive as the first.
Agents subsequently interviewed Taylor who advised that in the prior December she had seen in the house white powder she believed to be methamphetamine. Cooperating with the DEA, she later delivered three small rocks of methamphetamine she said were manufactured at Benbrook's home. In April 1993 she informed agents that Benbrook had obtained most of the chemicals necessary for more manufacture, and that production would begin shortly. Late on the night of April 14, Benbrook's auto was under surveillance by a DEA agent who requested assistance from the Mesquite police department to identify the driver. The local police responded, stopped the vehicle, and determined that Benbrook was the driver. A narcotics dog was called in and it alerted on the trunk, but no controlled substances were found. In the early morning hours of April 15 another creep disclosed odors and sounds consistent with the operation of a methamphetamine lab. Based on the cumulative information, a search warrant was sought and secured.
Upon execution of the warrant near midday, April 15, 1993, agents found Benbrook and Sexton sitting on a couch watching television. Precursor materials were found in the sink, in Benbrook's van, and in a wooden shed behind the house. Phenylacetic acid, the controlled substance charged in the indictment, was found in the locked van. Trace amounts of methamphetamine were found in glassware in the house and in the shed, which had been nailed shut. The shed contained the equipment necessary for the manufacture of methamphetamine. It was not then operational but could be made so in a few hours. The search also uncovered copious notes and literature on the manufacture of both amphetamines and methamphetamines.
In the search of the house, the agents found a disassembled 9mm pistol and one bullet on a shelf in the room in which Benbrook and Sexton were located. Upstairs, under Benbrook's bed, they found two loaded pistols, and in a closet they found a pistol, a mini 14 ranch rifle, a 12 gauge shotgun, and a 44 magnum lever-action rifle. In addition, a pistol was found in Sexton's truck.
Benbrook and Sexton were charged with both the unlawful possession of contraband and the firearm infraction. The jury returned verdicts of guilty on both counts against both defendants; the district court granted a post-trial motion acquitting Sexton on the firearm count.
On appeal Benbrook challenges the validity of the search and the evidence it produced, the refusal of the trial court to sever the trials, the admission of evidence of extrinsic offenses, and the sufficiency of the evidence on both counts. Sexton challenges the sufficiency of the evidence and the tainting effect of the evidence relating to the firearm charge of which he ultimately was acquitted.
Benbrook first contends that the evidence acquired in the execution of the search warrant should have been supressed because the initiating affidavit was insufficient. He faults the affidavit for not informing the magistrate judge that the odors described can linger for months and for failing to apprise the authorities that Taylor had given information on two prior occasions which had proven unfounded. He also points to trial testimony contrary to Taylor's assertion that she had been in the house in December 1992.
Under the good faith exception to the exclusionary rule, officers may rely on a warrant supported by an affidavit alleging more than wholly conclusionary statements even if the affidavit, subsequently assessed, is found insufficient to establish probable cause. 2 The instant affidavit, however, easily passes muster. 3
Benbrook maintains that the good faith exception should not be applied because in making the affidavit the DEA agents omitted material information and included false information. 4 To prevail in this argument Benbrook must make a substantial showing that the affiant made the statement, or omission, knowingly or with reckless disregard for the truth. In limine, the district judge found that Benbrook had failed to make the required preliminary showing warranting a hearing on the matter. At the close of the prosecution's case, the judge found that any statement or omission by the affiant that misled the magistrate judge was neither knowing nor intentional. We find nothing in the record to indicate that either of these rulings was erroneous.
Benbrook next contends that the trial court erred in refusing to sever his trial from Sexton's, maintaining that evidence of extrinsic offenses by Sexton prejudiced his trial. We need not tarry long here. Defendants indicted together should be tried together absent a serious risk of compromising a specific trial right or of preventing the jury from making a reliable judgment about guilt or innocence. 5 The two witnesses attesting to extrinsic evidence against Sexton, testified about substantially similar evidence against Benbrook. We perceive nothing especially complex about either the evidence or the proceedings to suggest that the district court's instruction to the jury on the use of extrinsic evidence was ineffective in preventing prejudice to Benbrook. We find no abuse of discretion by the district court in denying the motion to sever. 6
Benbrook also faults the allowance of evidence about his prior drug and weapons activities. Under Fed.R.Evid. 404(b), before such evidence can be admitted the trial court must first find that the evidence is relevant to an issue other than the defendant's character. 7 Here, the court found that the extrinsic offenses were relevant to Benbrook's knowledge, motive, plan, opportunity, and intent to possess the controlled substance with the intent to manufacture methamphetamine. Past drug activities involving methamphetamine logically are relevant to what Benbrook intended to do with the methamphetamine precursor chemicals found in his home. 8 The same applies to prior gun activities and the firearm charge. The district court did not abuse its discretion in finding the extrinsic offenses relevant to Benbrook's intent. 9
The district court must also find that the probative value of the past offenses is not outweighed by the danger of unfair prejudice to the defendant. 10 The government had the burden of proving Benbrook's intent to manufacture methamphetamine and his use of a firearm in relation to drug trafficking. We perceive no error in the court's finding that the probative value of the extrinsic offense evidence was not outweighed by its prejudice to the defendant. 11
Benbrook next asserts that the evidence was insufficient to support the guilty verdicts on his two counts. In our review we inquire whether a reasonable trier of fact could find that the evidence established guilt beyond a reasonable doubt, viewing the evidence in the light most favorable to the verdict. 12 "The evidence need not exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt." 13 In this inquiry, we resolve all questions of credibility in favor of supporting the jury's verdict. 14
Benbrook first contends that there is insufficient evidence to support his conviction under 18 U.S.C. Sec. 924(c)(1). To sustain a firearms conviction the government must prove that the defendant used or carried a firearm in relation to a drug trafficking offense. 15 Benbrook argues that the government failed to prove he "used" a firearm in relation to the drug trafficking charge, contending that by virtue of the location of the firearms upstairs and the government admissions that he made no effort to reach a gun, he could not and did not "use" a firearm. We are not persuaded.
In United States v. Thomas, 16 we held that a jury could find that an unloaded firearm stored in a gym bag on the second floor of a house was used in relation to drug trafficking. Noting that "[t]he fact that a weapon is 'unloaded' or 'inoperable' does not insulate a defendant from the reach of Sec. 924(c)(1)," we held that the government is required to show only that the firearms in question were available to provide protection to the defendant's drug activities. 17 The Thomas decision concluded that the presence of loaded firearms at a defendant's home where drugs, money, and ammunition are also found is "sufficient to establish the use of a firearm as an integral...
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