U.S. v. Burch, No. 95-40045-01-SAC.

• Court: United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
• Writing for the Court: Crow
• Citation: 958 F.Supp. 531
• Parties: UNITED STATES of America, Plaintiff, v. Gerald G. BURCH, Defendant.
• Docket Number: No. 95-40045-01-SAC.
• Decision Date: 21 February 1997

958 F.Supp. 531 UNITED STATES of America, Plaintiff,
v.
Gerald G. BURCH, Defendant. No. 95-40045-01-SAC. United States District Court, D. Kansas. February 21, 1997.

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Joseph D. Johnson, Joseph D. Johnson, Chartered, Topeka, KS, Eric Kjorlie, Topeka, KS, Steven E. Emke, Grounds, Rose & Emke, Kansas City, MO, Sue Carpenter, Topeka, KS, Gordon A. Harness, Newcastle, OK, Gary Hill, El Paso, TX, for Gerald G. Burch.

Gerald G. Burch, Lancaster, TX, pro se.

Bruce W. Simon, Simon & Simon, Kansas City, MO, Marilyn M. Trubey, Office of Federal Public Defender, Topeka, KS, Michelle Wallace, Kansas City, MO, for Gale F. Burch.

Gale F. Burch, Lancaster, TX, pro se.

Thomas G. Luedke, Office of the U.S. Attorney, Topeka, KS, for U.S.

MEMORANDUM AND ORDER

CROW, Senior District Judge.

On June 13, 1995, the grand jury returned a two count indictment charging Gerald G. Burch and Gale F. Burch, husband and wife, with conspiracy to possess with intent to distribute 538 pounds of marijuana (Count 1) and possession with intent to distribute 538 pounds of marijuana (Count 2). The marijuana was discovered during a stop of the semi-tractor/trailer rig driven by Gerald Burch. Gale Burch was riding as a passenger.

On October 5, 1996, the court entered a memorandum and order, which, inter alia, denied the defendants' motions to suppress evidence of the June 4, 1995, search. See United States v. Burch, 906 F.Supp. 592 (D.Kan.1995). In their motions to suppress, the defendants argued that the 538 pounds of marijuana discovered in the trailer was the

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product of an illegal search unsupported by probable cause. The court concluded that the evidence was the product of a lawful regulatory search and seizure. 906 F.Supp. at 598-99.

On March 29, 1996, the court entered an order severing Gerald Burch's trial from Gale Burch's trial.¹ On April 22, 1996, trial of Gale Burch commenced. The jury found Gale Burch guilty on both counts. See United States v. Burch, 928 F.Supp. 1066 (D.Kan. 1996) (denying Gale Burch's motion for judgment of acquittal, or, in the alternative, for a new trial).

On October 15, 1996, the court permitted Joe Johnson, retained counsel, to withdraw from his representation of Gerald Burch. Satisfied that Gerald Burch was without sufficient resources to retain another attorney, the court appointed Sue Carpenter. On December 13, 1996, the court granted Sue Carpenter's motion to withdraw and appointed Eric Kjorlie to represent Gerald Burch.

On January 10, 1997, Burch filed a "Supplement to Motion to Suppress Evidence [FRCP 12, 41(e), 41(f)]" (Dk.194). That motion was denied. See United States v. Burch, No. 95-40045-01-SAC, 1997 WL 50302 (D.Kan. Jan.22, 1997). The case proceeded to trial.

Selection of the jury commenced on January 28, 1997. During its case, the government introduced evidence that Burch and his wife were hauling 538 pounds of marijuana from Texas to Chicago when stopped by Trooper Smith in Kansas. The marijuana had an estimated street value of over $1,000,000. According the testimony of Trooper Smith and Trooper Haak, Burch confessed on three separate occasions that he was a knowing participant in the conspiracy to distribute marijuana. Burch admitted hauling the marijuana for a person named "Ishmel" for the sum of $25,000, or approximately $50 a pound. The government rested its case after approximately one day of evidence. Burch's motion for judgment of acquittal at the close of the government's case was denied.

Burch presented a defense and testified on his own behalf. Burch claimed that he was an elite driver, primarily hauling freight for popular musical and broadway shows. Burch testified that he had hauled equipment for musical shows like Madonna and Clint Black. Burch testified that prior to being stopped in Kansas by Trooper Smith he did not know what was contained in the boxes which he was hauling. Instead, it was his understanding that he was hauling 500 pounds of "stereos" from Texas to Chicago for the sum of $337. Burch denied that he had confessed to either Trooper Smith or Haak, essentially calling both troopers liars. Burch also introduced evidence that he had declared bankruptcy on January 23, 1995, and that he had received a discharge from bankruptcy on May 12, 1995. Burch also admitted his tax returns from 1994 and various business records.² Other witnesses called by Burch discussed trucking practices and procedures as well as their personal relationships with Burch.

During cross-examination, over the defendant's objection, the court permitted the government to cross-examine the defendant concerning law enforcement officers' seizure of $60,000 from Burch and his wife in New York City at the time that they were released on bond pending trial in this case.³ According to Burch, he and his wife had traveled to New York City with approximately $60,000 in cash to purchase a truck from a person whose name they did not know.⁴ Upon their

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arrival to a certain motel in New York, the unknown seller would make contact with the Burches to possibly consummate the deal. The defendant's motion for judgment of acquittal at the close of his case was denied.

The government presented a brief rebuttal, recalling Trooper Smith to address certain comments made by Burch during his case.

On January 31, 1997, after deliberating for approximately three hours, the jury returned a verdict finding the defendant guilty of both charges.

This case comes before the court upon the defendant's "Motion for Judgment of Acquittal, or in the Alternative, for a New Trial" (Dk.212). Burch contends that there was insufficient evidence for the jury to have concluded that he was a knowing participant in a conspiracy to possess with the intent to distribute marijuana. As he did at trial, Burch contends that he did not know that he was transporting marijuana and that his only knowledge that the substances contained within the boxes that he was hauling was marijuana came from his discussions with the troopers after his truck was stopped. Burch denies any prior knowledge that he was hauling a controlled substance.

In support of his request for a new trial, Burch argues that the court erred in permitting the government to cross-examine him regarding the $60,000 seized in New York City. Burch contends that the evidence was prior bad act evidence that should have been excluded under Fed.R.Evid. 404(b). Burch contends that this evidence of "unexplained wealth"⁵ prejudiced him and precluded the jury from rendering a fair verdict in this case.

The government opposes Burch's motion. The government contends that there was ample evidence from which a rational factfinder could have concluded that Burch was guilty of the crimes charged. In regard to the defendant's contention that the court improperly admitted evidence regarding the $60,000 seized in New York, the government contends that the evidence was not admitted under Rule 404(b) but instead to impeach and rebut Burch's claim that his income was derived from legitimate sources. The government argues that Burch opened the door to such evidence by introducing evidence regarding his own financial status.

The court, having considered the briefs of counsel, the evidence presented at trial and the applicable law, denies Burch's motion.

Sufficiency of the Evidence

To review the sufficiency of the evidence supporting a criminal conviction, the...