U.S. v. Buchanan

• Decision Date: 27 July 2009
• Docket Number: No. 08-3515.,08-3515.
• Citation: 574 F.3d 554
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Steve BUCHANAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

574 F.3d 554

UNITED STATES of America, Plaintiff-Appellee, v. Steve BUCHANAN, Defendant-Appellant.

No. 08-3515.

United States Court of Appeals, Eighth Circuit.

Submitted: June 11, 2009.

Filed: July 27, 2009.

George E. Grassby, AFPD, argued, Rapid City, SD, for appellant.

Mark Alexander Vargo, I, AUSA, argued, Rapid City, SD, for appellee.

Before MELLOY, BEAM, and COLLOTON, Circuit Judges.

MELLOY, Circuit Judge.

A jury convicted Steve Buchanan of one count of attempting to manufacture methamphetamine in violation of 21 U.S.C. § § 841(a)(1) and 841(b)(1)(B). Prior to trial, the district court¹ denied Buchanan's motion to suppress certain evidence. Buchanan appeals his conviction, arguing that the district court erred in denying his motion to suppress because the affidavit supporting the warrant failed to establish the reliability or credibility of the two informants and misrepresented the statements Buchanan had made in a recorded telephone call. Buchanan also claims that the district court's jury instructions constructively amended the Indictment by omitting the word "attempt" from an instruction, that the Indictment failed to state an offense because it did not specifically cite the attempt statute, and that there was an impermissible variance between the Indictment and the proof at trial. We affirm.

I. Background

On February 13, 2006, the South Dakota Division of Criminal Investigation received an unsolicited phone call concerning alleged drug activity in Custer, South Dakota. The call was referred to Agent Lyle Tolsma who did not knew and had not had any previous contact with the caller. The caller, whom Tolsma deemed a "source of information" ("SOI"), identified herself by first name, indicated that she had been to Buchanan's house three days earlier, and alleged that Buchanan had offered her methamphetamine. The SOI also alleged a second person—a woman Tolsma later identified as a confidential informant ("CI")—was involved in manufacturing methamphetamine with Buchanan.

During the call, the SOI informed Tolsma she was familiar with the appearance of methamphetamine and had been around it several times. The SOI described seeing approximately half of a gram of crystal methamphetamine on an aluminum smoking apparatus at Buchanan's house and stated that she was forced to leave the house because of the strong chemical odor. Tolsma testified that methamphetamine manufacturing produces a noticeable smell which, in some cases, can be detected a block away.

Around noon on February 14, 2006, Tolsma, joined by Agent Steve Ardis, conducted a "knock and talk" at Buchanan's home to investigate the SOI's allegations. Buchanan refused to let the agents into his house, claiming that it was messy. Buchanan made no incriminating statements, and Tolsma testified that he smelled no odor indicative of methamphetamine manufacturing.

After speaking with Buchanan, Agents Tolsma and Ardis went to the CI's house to conduct another knock and talk. They told the CI that they were investigating allegations that she was involved in manufacturing methamphetamine with Buchanan. The CI confirmed that Buchanan was making methamphetamine and that, since October 2005, she had provided him approximately fifty packets of pseudoephedrine, a drug used to produce methamphetamine. The CI indicated that she had received methamphetamine from Buchanan in exchange for the pseudoephedrine. She also stated that she had smoked methamphetamine with Buchanan three days prior and that she had last seen Buchanan when she delivered pseudoephedrine to him the previous night. The CI also itemized objects Buchanan was using to produce the drug in his home.

Tolsma and Ardis told the CI that if she cooperated in their investigation they would speak to the prosecutor and that her cooperation would "go a long ways" toward helping her. The CI then agreed to conduct a recorded phone call with Buchanan, which they conducted that same day.

During the recorded phone conversation, Buchanan cautioned the CI of the agents' visit to his house and commented that state investigators were "probably listening in." Buchanan and the CI then engaged in a discussion of who might have informed law enforcement that he was manufacturing methamphetamine. Later in the conversation, Buchanan stated, "[T]here's a bunch of stupid [expletive] people around that you know, they get in trouble and then they try and get us in trouble. ... so hell, I'm not doing anything wrong." The CI asked Buchanan, "Do you think you are ok?" Buchanan replied, "Yeah, yeah, yeah, like I said you know, hey. It is scary but like I said, I ain't done nothing so I ain't worrying about it but I do have to clean up my garbage cause if they come into my house and bunch of people like that. ..."

Buchanan told the CI that he had refused to let the agents into his house and commented, "I gotta clean up my you know, key ends, and garbage and stuff I got laying all over my house and stuff you know and make it look a little more presentable in case somebody comes in. I'd hate to, you know." At one point, Buchanan and the CI engaged in an indirect discussion about the whereabouts of an unnamed item. The CI asked, "[W]ell what about me?" Buchanan replied, "Don't worry about that, it's gone." He later stated, "Yeah, it's gone. You know what I mean, you can't piss around and stuff so ... I imagine they are probably trying to get a warrant and all this [expletive] right now so. ..." Later the CI asked directly, "And where did you put it?" Buchanan replied "I haven't you know, time to get rid. ..." The CI interjected, "I know, but where?" Buchanan replied, "It ain't at your place so I don't know. ..."

Approximately a half hour after the call, law-enforcement agents, including Agent Tolsma, entered Buchanan's house and secured the residence to ensure no evidence was destroyed or removed. Tolsma then prepared an application and affidavit in support of a search warrant and read them over the phone to a state magistrate. Tolsma detailed the information the SOI had conveyed, but did not tell the state magistrate that the SOI had not given her full name, that he did not know her, or that he had not had any previous contact with her. While providing details of his conversation with the CI, Tolsma failed to state that he had no previous connection to the CI. Additionally, Tolsma indicated that he had visited Buchanan, but did not state that he had been physically present both inside and outside Buchanan's house without smelling a methamphetamine odor. Tolsma characterized Buchanan's statements in the recorded phone call as follows: "Buchanan advised the CI that he ... is currently in the process of cleaning out his residence, referring to the clandestine equipment and chemicals." (emphasis added). Buchanan, however, had never directly referenced the "clandestine equipment" or "chemicals" in the recorded call.

Based on Tolsma's application and affidavit, the state magistrate granted a search warrant, and a subsequent search revealed many incriminating items. Buchanan was then indicted for attempting to manufacture methamphetamine. The Indictment read:

On or about February, 2006, at Custer, in the District of South Dakota, the defendant, Steve Buchanan, did knowingly and intentionally attempt to manufacture five grams or more of actual methamphetamine, a Schedule II controlled substance, all in violation of 21 U.S.C. §§ 841(a)(1) and 84 1(b)(1)(B).

The Indictment, however, did not include a statutory reference to 21 U.S.C. § 846, which criminalizes the attempt to manufacture a controlled substance. See 21 U.S.C. § 846.

Prior to trial, Buchanan filed a motion to suppress the evidence obtained during the search. A magistrate judge held a Franks hearing to determine the validity of the search warrant and issued a report and recommendation that the district court deny Buchanan's motion. See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The district court adopted the report and recommendation and denied Buchanan's motion to suppress. At trial, the district court's preliminary jury instructions informed the jury that Buchanan was charged "with the crime of attempting to manufacture [methamphetamine]." The final jury instructions repeated that charge in instructions five and eight. In instruction six, however, the district court stated that "the indictment charges the defendant with manufacturing a controlled substance." (emphasis added). Instruction six did not include the word "attempt" but continued to describe § 846 and told jurors that § 846 "provides that `any person who attempts ... to commit any offense defined in this subchapter [which includes 21 U.S.C. § 841(a)(1)] shall be subject to the same penalties as those prescribed for the offense.'" (quoting 21 U.S.C. § 846). The court also instructed the jury as to the elements of an attempt-to-manufacture charge and explained the workings of those elements in instruction seven.

While the Indictment alleged a conspiracy "[o]n or about February 2006," the Government introduced evidence dating back to the spring of 2005 and established that Buchanan had expressed interest in learning to manufacture methamphetamine and had sought instruction from books and friends. Buchanan did not object to the introduction of this evidence. At the close of evidence, however, he made a Rule 29 motion for a judgment of acquittal, arguing that he had been prejudiced by an impermissible variance between the indictment and the facts established at trial. See Fed.R.Crim.P. 29. The district court denied Buchanan's motion.

Ultimately, the jury convicted Buchanan of one count of attempting to manufacture methamphetamine in violation of § 841. The district court sentenced him to eighty months' imprisonment and four years' supervised release. This timely appeal followed.

II. Motion to Suppress

Buchanan argues that the district court erred by failing to grant his ...