U.S. v. Brooks, No. 04-3218.

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtMcKay
Citation438 F.3d 1231
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Rollie P. BROOKS, Defendant-Appellant.
Decision Date01 March 2006
Docket NumberNo. 04-3218.
438 F.3d 1231
UNITED STATES of America, Plaintiff-Appellee,
v.
Rollie P. BROOKS, Defendant-Appellant.
No. 04-3218.
United States Court of Appeals, Tenth Circuit.
March 1, 2006.

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Constance Y. Singleton, Houston, TX, for Defendant-Appellant.

Terra D. Morehead, Assistant United States Attorney (Eric F. Melgren, United States Attorney, with her on the briefs), District of Kansas, for Plaintiff-Appellee.

Before HENRY, McKAY, and HARTZ, Circuit Judges.

McKAY, Circuit Judge.


Employees at a Target store in Lawrence, Kansas, became increasingly suspicious of the frequency with which Mr. Rollie Brooks purchased pseudoephedrine cold pills (which can be used to manufacture methamphetamine). During a forty-eight-day

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period, Mr. Brooks bought a total of 912 Target-brand pseudoephedrine pills, purchasing two boxes of pills on each visit.1 The Target store was a participant in the Drug Enforcement Administration's "Meth Watch" program, which encourages retail businesses selling cold pills containing pseudoephedrine to monitor individuals purchasing large quantities of such pills.

The Target store employees alerted the Kansas Police Department Drug Enforcement Unit. On separate occasions during a period of more than one month, Drug Enforcement officers observed Mr. Brooks purchasing the pseudoephedrine pills at Target and followed him to his car and home, ran a criminal history check which showed two prior arrests for possession of methamphetamine, and watched videotaped Target footage of Mr. Brooks purchasing pills. The police eventually obtained a search warrant, issued out of Franklin County, Kansas, for Mr. Brooks' home and car. Officers departed to search Mr. Brooks' home, an RV located on a thirty-acre farm owned by the mother of Mr. Brooks' friend, Randall Penner. The RV was hooked up in the corral of the farm. Mr. Penner's RV home was also located on the property, as was a workshop, known as the "red barn." At the time the police searched the property, Mr. Brooks' white pickup truck was parked there.

The search yielded the following from the back of Mr. Brooks' pickup: a store receipt for hydrogen peroxide and Diamond King matches,2 reddish stained coffee filters,3 and empty bottles of HEET (anti-freeze). From Mr. Brooks' RV, the police collected: a 500-milliliter flask inside a pistol case, a yellow funnel with a powder residue, a glass jar filled with a liquid, and several plastic containers of liquid — on each of which laboratory analysis indicated the presence of methamphetamine as well as other chemicals used in its manufacture (including phenal acetone, sodium, and hydrochloric acid). The police also came across two guns in Mr. Brooks' RV, a .357 magnum Ruger revolver under his pillow and a .357 magnum Colt revolver on a shelf. Mr. Brooks, however, was nowhere to be found. Later that day, the Douglas County authorities located him driving and conducted a felony stop. They arrested Mr. Brooks without a warrant and first searched and then impounded his 1963 Chevy Impala. Inside the car they found three baggies containing a combined total of .92 grams of methamphetamine, and they found two guns in the trunk.

Both Mr. Brooks and his neighbor friend, Mr. Penner, were charged in two separate cases in Kansas state court. Mr. Penner pleaded guilty to the state charge of possession of drug paraphernalia and was sentenced to twelve months' probation. The paraphernalia which was the subject of his plea included the items for which Mr. Brooks was charged in his separate state case. The United States Attorney first filed a one-count indictment against Mr. Brooks, charging him with possession of an unregistered firearm found in his car at the time of arrest. Later, a superseding fifteen-count indictment was filed in federal court upon which

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Mr. Brooks' conviction is based and from which he now appeals.

In a February 2004 jury trial, Mr. Brooks was convicted of thirteen counts, including unlawful possession of an unregistered firearm under 26 U.S.C. § 5861(d), manufacture of five or more grams of methamphetamine under 21 U.S.C. § 841(a)(1), and unlawful possession of a firearm during and in relation to a drug trafficking crime under 18 U.S.C. § 924(c)(1)(A). He was sentenced to 180 months' incarceration. Mr. Brooks now seeks review based on several claims, including a number of insufficiency of evidence and suppression claims. He also argues the following: it was error to apply Criminal History Category IV in determining his sentence, where the proper category was III; his attorney's failure to file a motion to suppress evidence obtained through the search warrant as well as his failure to file objections to the evidence of Mr. Brooks' arrest in St. Charles County constituted ineffective assistance of counsel; the trial court erred when it based Mr. Brooks' sentence on drug quantities not determined by the jury, in violation of his Sixth Amendment rights; and the trial court erred when it included both Counts Four and Five in the judgment as counts of conviction, where Count Four was a lesser included crime covered by Count Five.

At the close of the government's evidence, Mr. Brooks moved for judgment of acquittal, which the district court denied. Mr. Brooks also filed a post-trial motion regarding sufficiency of the evidence which the district court also denied in a Memorandum and Order. Aplt.App. at 20. He now requests this court to review whether there was sufficient evidence to support a conviction (1) for possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A), (2) for the manufacture or attempted manufacture of methamphetamine, and (3) for the possession of pseudoephedrine with reasonable cause to believe it would be used to manufacture methamphetamine.

We review de novo the issue of whether there is sufficient evidence to sustain a jury verdict. United States v. Voss, 82 F.3d 1521, 1524-25 (10th Cir.1996). We must examine "the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Miller, 987 F.2d 1462, 1464 (10th Cir.1993).

In reviewing the sufficiency of the evidence, we must "consider both direct and circumstantial evidence, as well as the reasonable inferences to be drawn from that evidence." United States v. Davis, 1 F.3d 1014, 1017 (10th Cir.1993) (citing United States v. Fox, 902 F.2d 1508, 1513 (10th Cir.1990)). Furthermore, it is not our duty to weigh conflicting evidence nor to consider the credibility of witnesses. United States v. Youngpeter, 986 F.2d 349, 352-53 (10th Cir.1993). In this respect, we must defer to the jury's resolution. Id. Finally, "[r]ather than examining the evidence in `bits and pieces,' we evaluate the sufficiency of the evidence by `consider[ing] the collective inferences to be drawn from the evidence as a whole.'" United States v. Wilson, 107 F.3d 774, 778 (10th Cir.1997) (alteration in original) (quoting United States v. Hooks, 780 F.2d 1526, 1532 (10th Cir.1986)).

Put succinctly,

[e]vidence is sufficient to support a criminal conviction if a reasonable jury could find the defendant guilty beyond a reasonable doubt, given the direct and circumstantial evidence, along with reasonable inferences therefrom, taken in a light most favorable to the government.

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United States v. Mains, 33 F.3d 1222, 1227 (10th Cir.1994).

We will first consider Mr. Brooks' argument that there was insufficient evidence to support a conviction for possession of a firearm in furtherance of a drug trafficking crime. Mr. Brooks contests (1) that the prosecution used inaccurate language in this count (number six) of his indictment and (2) that there was insufficient evidence to support a finding that he possessed a gun "in furtherance" of a drug trafficking crime. As to the inaccuracy of the language, the confusion stems from § 924(c)(1)(A) which defines two separate firearm offenses — "use or carry during or in relation to" and "possesses in furtherance" — while Count Six of the indictment only referred to "the defendant, during and in relation to the attempted manufacture of methamphetamine, a drug trafficking crime for which he may be prosecuted in a court of the United States, unlawfully possessed in furtherance of such crime, a firearm . . . ." (Emphasis added). Aplt. Br. at 10. Since the prosecution failed to include the "use and carry" language which should accompany "during and in relation to," the court submitted jury instructions which omitted the words "during and in relation to" and in fact only defined the offense of "possessing the firearm in furtherance." Aple. Supp.App. Vol. IV at 609-10. Mr. Brooks suggests that the prosecution was obligated to prove that the gun was possessed both "during and in relation to" and "in furtherance of" the attempted manufacture of methamphetamine. This is not so.

While the trial court is precluded from amending an indictment so as to add an offense or otherwise broaden the possible bases for conviction, Stirone v. United States, 361 U.S. 212, 216-17, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960), it may strike from an indictment allegations which are both independent of and unnecessary to the offense on which a conviction ultimately rests. United States v. Miller, 471 U.S. 130, 136-37, 105 S.Ct. 1811, 85 L.Ed.2d 99 (1985). Indeed, Federal Rule of Criminal Procedure 7(d) empowers district courts to "strike surplusage from the indictment or information" upon defendant's motion. Acting in its discretion, a district court may strike as surplusage allegations not relevant to the charge at issue. See generally Bary v. United States, 292 F.2d 53, 55-56 (10th Cir.1961). In Count Six, the court's striking of the surplusage language from the jury...

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  • United States v. Nissen, No. CR 19-0077 JB
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • April 21, 2020
    ...and draw inferences from the facts presented." United States v. McKissick,Page 36 204 F.3d at 1289. See United States v. Brooks, 438 F.3d 1231, 1236 (10th Cir. 2006)("Furthermore, it is not our duty to weigh conflicting evidence nor to consider the credibility of witnesses."). The court mus......
  • U.S. v. White, No. 07-3153.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • October 22, 2009
    ...(same). Therefore, we decline to review these arguments on appeal. See Gambino-Zavala, 539 F.3d at 1227; United States v. Brooks, 438 F.3d 1231, 1239-40 (10th Cir.2006); United States v. Dirden, 38 F.3d 1131, 1139 n. 10 (10th Cir. 1994) (applying Rule 12(f)); Bryant, 5 F.3d at 476 (same); H......
  • U.S. v. Michel, No. 04-2214.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • May 10, 2006
    ...in which we might apply the plain error rule to suppression issues raised for the first time on appeal, see United States v. Brooks, 438 F.3d 1231, 1240 & n. 4 (10th Cir.2006); Meraz-Peru, 24 F.3d at 1198; United States v. Dewitt, 946 F.2d 1497, 1501-02 (10th Cir. 1991), we decline to do so......
  • United States v. McGehee, No. 11–3068.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • February 22, 2012
    ...would lead a reasonable person to believe that an offense ha[d] been or [was] being committed by [Mr. McGehee].” United States v. Brooks, 438 F.3d 1231, 1241 (10th Cir.2006) (quoting United States v. Dozal, 173 F.3d 787, 792 (1999)) (internal quotation marks omitted). In many instances, as ......
  • Request a trial to view additional results
68 cases
  • United States v. Nissen, No. CR 19-0077 JB
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • April 21, 2020
    ...and draw inferences from the facts presented." United States v. McKissick,Page 36 204 F.3d at 1289. See United States v. Brooks, 438 F.3d 1231, 1236 (10th Cir. 2006)("Furthermore, it is not our duty to weigh conflicting evidence nor to consider the credibility of witnesses."). The court mus......
  • U.S. v. White, No. 07-3153.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • October 22, 2009
    ...(same). Therefore, we decline to review these arguments on appeal. See Gambino-Zavala, 539 F.3d at 1227; United States v. Brooks, 438 F.3d 1231, 1239-40 (10th Cir.2006); United States v. Dirden, 38 F.3d 1131, 1139 n. 10 (10th Cir. 1994) (applying Rule 12(f)); Bryant, 5 F.3d at 476 (same); H......
  • U.S. v. Michel, No. 04-2214.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • May 10, 2006
    ...in which we might apply the plain error rule to suppression issues raised for the first time on appeal, see United States v. Brooks, 438 F.3d 1231, 1240 & n. 4 (10th Cir.2006); Meraz-Peru, 24 F.3d at 1198; United States v. Dewitt, 946 F.2d 1497, 1501-02 (10th Cir. 1991), we decline to do so......
  • United States v. McGehee, No. 11–3068.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • February 22, 2012
    ...would lead a reasonable person to believe that an offense ha[d] been or [was] being committed by [Mr. McGehee].” United States v. Brooks, 438 F.3d 1231, 1241 (10th Cir.2006) (quoting United States v. Dozal, 173 F.3d 787, 792 (1999)) (internal quotation marks omitted). In many instances, as ......
  • Request a trial to view additional results

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