U.S. v. Blanchard
| Decision Date | 08 September 2008 |
| Docket Number | No. 07-2780.,07-2780. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Marshall L. BLANCHARD, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Timothy A. Bass (argued), Office of the United States Attorney, Springfield, IL, for Plaintiff-Appellee.
Robert Kirchner (argued), Champaign, IL, for Defendant-Appellant.
Before FLAUM, MANION, and TINDER, Circuit Judges.
Marhsall Blanchard was tried and convicted of one count of manufacturing methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and one count of unlawful possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). He challenges both convictions on a variety of grounds, including the denial of his pretrial motions for a bill of particulars and severance, the alleged constructive amendment of the indictment, the sufficiency of the evidence, and the introduction at trial of certain comments, originally made at a pretrial suppression hearing, by the district court judge. Blanchard also challenges his sentence, contending that the district court erroneously applied certain enhancements in calculating the advisory guidelines range. For the reasons set forth in this opinion, we vacate Blanchard's convictions and remand for a new trial.
The Defendant, Marshall Blanchard, owned two homes, one in Roberts, Illinois, and the other in Paxton, Illinois. The two towns are roughly 15 miles apart in east-central Illinois. Blanchard acquired and moved into the Roberts home no later than sometime during the year 2001, the same year in which he separated from his exwife.
With the exception of a seven-month period during 2003, Blanchard's son, Marshall Jr.,1 lived with him at the Roberts residence. In the fall of 2001, Marshall Jr. removed several firearms — four rifles and two shotguns — from an enclosed porch area of the Roberts residence and delivered them to a family friend's place of business for storage. He later returned the same firearms to the porch area of the Roberts residence, but more on that later.
After moving out of the Roberts residence in February 2003, Marshall Jr. returned sometime in August 2003. At that time, he was twenty years old and studying criminal justice at a local college. During the summer of 2004, Marshall Jr. began using the porch area of the Roberts residence as his bedroom. In order to enjoy exclusive access to his bedroom, Marshall Jr. installed a lock on the door leading to the porch area from the interior of the house and kept the only key for himself. In October or November of 2004, Marshall Jr. retrieved the aforementioned firearms from the family friend's place of business and returned them to the porch area at the Roberts residence. Those firearms remained in the porch area of the Roberts residence throughout the remainder of 2004.
Meanwhile, during the late summer and fall of 2004, Marshall Jr. began to notice peculiar physical and behavioral changes in his father. He noticed that Blanchard lost considerable weight, had blemishes and sores on his face, did not sleep much, and seemed unusually agitated. In addition, Blanchard regularly entertained visitors, some of whom Marshall Jr. did not know; however, he did know the most frequent visitor, Cynthia Blanding.
Blanding and Blanchard met in mid-October 2004. At that time, Blanding was in the process of moving out of her home, from which she had been evicted. Blanding and Blanchard became romantically involved, and Blanchard offered to let Blanding stay at the house in Paxton, which she did on occasion. She also stayed overnight with Blanchard on several occasions at the Roberts residence.
One day in the last week of December 2004, Marshall Jr. was home alone at the Roberts residence. He noticed a strong, ammonia-type smell coming from the sink; upon inspection, he observed a strainer and some glass jars in the sink. The following day, he arrived home early from work and discovered two plastic bottles containing an "off-white crystal" substance. He opened one of the bottles and encountered a strong ammonia-type odor. Marshall Jr. recalled information that he had learned about methamphetamine in his criminal justice studies; at this point, putting the off-white substance together with his father's recent physical and behavioral changes, he suspected that the substance was methamphetamine. Marshall Jr. photographed the bottles with his digital camera and took a spoon-sized sample of the off-white substance; he then went to see his mother, Lori Blanchard. After discussing his suspicions and concerns with her, Marshall Jr. left Lori with the sample of the off-white substance and a disk containing the photos from his digital camera. Lori then contacted the Roberts chief of police, Randy Kinzinger, and delivered these items to him. The off-white substance tested positive for ephedrine, a commonly used ingredient in the manufacture of methamphetamine.
Shortly thereafter, on December 30, 2004, law enforcement officers executed search warrants at both the Roberts and Paxton residences. At both residences, officers seized items that, although innocuous when viewed individually and in isolation, might nonetheless be used, as a group, for methamphetamine manufacturing. At the Paxton residence, for example, officers seized camp fuel containers, a sulfuric acid container, filters, salt, a gas mask, and pseudoephedrine packaging; cleaning officials later encountered hazardous substances, including anhydrous ammonia, at that residence. And at the Roberts residence, officers seized, among other things, numerous coffee filters, an anhydrous ammonia tank, and a propane tank. And not only was there "smoke," but also "fire"; officers seized 9.8 grams of a substance containing methamphetamine from the Paxton residence and 69 grams of a substance containing methamphetamine from the Roberts residence. In addition, at the Roberts residence, officers seized .01 grams of methamphetamine from the nightstand in Blanchard's bedroom and .10 grams of methamphetamine from a plastic plate beneath his bed. At the Roberts residence, officers also seized four rifles and two shotguns from the aforementioned enclosed porch area, and they seized a .32-caliber revolver and ammunition from underneath the mattress in Blanchard's bedroom.
On April 8, 2005, Blanchard was charged in a federal indictment with one count of manufacturing methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C) (Count One), and one count of unlawful possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g) (Count Two). The indictment alleged that both offenses occurred "on or about December 30, 2004."
Blanchard's trial began on March 27, 2006. At trial, the government presented the evidence seized from both residences, as well as expert testimony opining that a "meth lab" existed at the Paxton residence and that materials consistent with the manufacture of methamphetamine were found at the Roberts residence. Marshall Jr. testified regarding his observations in late 2004 that led him to suspect that his father was using methamphetamine. He also testified regarding the firearms seized from the porch area of the Roberts residence; he explained that all but one of the guns belonged to his father, that his father controlled and directed both the 2001 removal and the 2004 retrieval/return of those firearms, and that he stopped using the porch area of the Roberts residence as his bedroom in September or October 2004, allowing his father unfettered access to the porch area throughout the remainder of the year. Blanding, testifying on behalf of the government pursuant to an immunity agreement, testified that Blanchard allowed her to use the Paxton residence for methamphetamine manufacturing, and that in exchange, she supplied him with methamphetamine. In addition, she testified that Blanchard sometimes supplied materials and assisted in the manufacturing process. She further testified that on or about Christmas Eve 2004, she and Blanchard completed the manufacture of a quantity of methamphetamine at the Roberts residence. Finally, she testified that Blanchard had shown her a handgun that he kept beneath the mattress in his bedroom at the Roberts residence.
The trial concluded on March 31, 2006, with the jury finding Blanchard guilty on both counts. The district court rejected Blanchard's post-verdict motion for judgment of acquittal, characterizing the evidence in support of both counts as "overwhelming." The court sentenced Blanchard to 150 months' imprisonment on Count One and 120 months' imprisonment on Count Two, to be served concurrently. In addition, the court sentenced Blanchard to three years of supervised release and a $100 special assessment. Blanchard timely filed this appeal, challenging both his convictions and his sentence.
On appeal, Blanchard challenges both convictions on a variety of grounds, including (1) the denial of his pretrial motions for a bill of particulars and a severance; (2) an alleged fatal variance between the date specified in the indictment and the evidence presented at trial, resulting in constructive amendment of the indictment; (3) certain statements made by the trial judge at a pretrial suppression hearing and subsequently introduced at trial; and (4) the sufficiency of the evidence. We address these arguments in turn below. Blanchard also challenges his sentence, but in light of our conclusion with regard to his convictions, we need not address that challenge.
Before trial, Blanchard moved for a bill of particulars pursuant to Federal Rule of Criminal Procedure 7(f). The indictment alleged that Blanchard committed both the methamphetamine manufacturing offense and the firearms offense "on or about December 30, 2004, in the Central...
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