U.S. v. Burchard

• Citation: 580 F.3d 341
• Decision Date: 02 September 2009
• Docket Number: No. 07-6312.,07-6312.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Randall H. BURCHARD, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

580 F.3d 341

UNITED STATES of America, Plaintiff-Appellee, v. Randall H. BURCHARD, Defendant-Appellant.

No. 07-6312.

United States Court of Appeals, Sixth Circuit.

Argued: December 3, 2008.

Decided and Filed: September 2, 2009.

ARGUED: Richard L. Walter, Boehl, Stopher & Graves, Paducah, KY, for Appellant. G. David Sparks, Assistant United States Attorney, Paducah, KY, for Appellee. ON BRIEF: Richard L. Walter, Boehl, Stopher & Graves, Paducah, KY, James B. Brien, Jr., Neely & Brien, Mayfield, Kentucky, for Appellant. G. David Sparks, Assistant United States Attorney, Paducah, Kentucky, Terry M. Cushing, Monica Wheatley, Assistant United States Attorneys, Louisville, KY, for Appellee.

Before: GIBBONS and WHITE, Circuit Judges; TARNOW, District Judge.^*

WHITE, J., delivered the opinion of the court, in which TARNOW, D.J., joined. GIBBONS, J. (p. 355), delivered a separate concurring opinion.

OPINION

WHITE, Circuit Judge.

Following trial on three counts of knowingly possessing a firearm in and affecting commerce while being an unlawful user or addicted to a controlled substance, in violation of 18 U.S.C. § 922(g)(3) and § 924(a)(2), a jury found Defendant Randall H. Burchard guilty of possessing five of the nine firearms charged in the indictment. The district court sentenced Burchard to concurrent terms of 27 months' imprisonment and two years' supervised release on each of the three counts, and imposed a $6,000 fine. Burchard appeals from the sentence and final judgment, challenging the adequacy of the jury instruction defining an "unlawful user of controlled substance" and the district court's denial of his motion for judgment of acquittal, contending that the Government failed to establish that his drug use was consistent or prolonged. We disagree, and affirm.

I

Government witness Kimberly Pace testified at trial that she met Burchard for the first time around October 2004, at a motel in Paducah, and that between that time and mid-October 2005 they used crack cocaine together on three or four different occasions, some of those occasions spanning several days. Pace testified that she had been with Burchard at a motel for 5 to 6 hours, at her home in LaCenter, and several times at his farm. Every time they were together they used crack cocaine.

Pace testified that she and Burchard were at his farm together a few days before October 13, 2005 (the date specified in Count 1) and used cocaine that he provided. On the morning of October 12, 2005, they went to a house in Paducah where they obtained crack cocaine, and picked up a woman named Nicole. The three then rented a room at the Hickory House Motel and smoked crack. Nicole left the next morning (October 13), before Pace and Burchard awoke. Burchard asked Pace to call the police because Nicole had stolen $500 from him. Pace testified that she called the police and that Burchard asked her to take the crack pipes they had been using and place them outside the motel room before the police arrived.

Officer David White responded to the cash theft complaint. Officer White testified that Burchard told him that Nicole had left with $500 of his, and that he had her cell phone and knew where she lived. Officer White called for back-up, and followed Burchard and Pace (who were in Burchard's truck) to Nicole's house on South 4th Street in Paducah. Nicole was not there, and the officers contacted Nicole's father, who came to the home and allowed them to search it. Officer White testified that they "developed some additional information that supported the fact that drugs may be involved," that he contacted a narcotics detective, and that narcotics Detective Toliver came to the South 4th Street address. Officer White testified that while he was talking to Burchard as Burchard sat in his truck, he noticed a handgun in a holster strapped over the driver's seat. He asked Burchard if it was his gun, Burchard responded that it was, and Officer White then asked to see it, recorded the serial number, unloaded it, and returned it to Burchard after confirming that it was not stolen. The gun was a Ruger model Blackhawk .30 caliber revolver, serial number 51-12649 (the weapon specified in Count 1). The drug detectives then took over the case. Officer White testified that Burchard did not want to make a formal complaint regarding the theft by Nicole.

Pace testified that on October 13, 2005, she and Burchard returned to the motel for their belongings, and each took a couple of hits of crack on the way to pick up a woman named Patricia on South 19th Street in Paducah. Burchard had made a phone call for crack cocaine and they waited for the drug delivery at the 19th Street address. Pace testified that she witnessed a person named "Q" deliver six eight-balls, packed in baggie corners, to Burchard and that Burchard paid him with a check. Pace called the police from the 19th Street house and reported the drug transaction.

Officer White testified that he and another officer were dispatched on that same day, October 13, 2005, to the 19th Street address based on a complaint that there was a male there who had drugs in his possession. When he arrived, he saw one man entering the house, and later figured out that it was Burchard because he was wearing the same clothes he wore that morning.

Pace testified that since uniformed police officers arrived before the undercover officers, and knocked on the door, the people at the 19th Street house had time to "flush the dope." However, the police recovered an empty baggie from the restroom, and during the execution of a search warrant seized a crack pipe made from a deep-well socket from the console and floorboard of Burchard's truck. The socket material tested positive for cocaine. Later that day, police executed a search warrant for Burchard's blood and urine at Lourdes Hospital. As discussed below, the samples tested positive for cocaine.

On October 28, 2005 (the date charged in Count II), search warrants were executed at the address at which Burchard's vehicle was registered, which turned out to be Burchard's mother's home. The officers showed Burchard the search warrant, and Burchard showed the officers a shotgun in a back bedroom closet. When Burchard noticed that the Ruger .30 caliber revolver was identified in the search warrant, he told the officers that someone had stolen it from his truck several days earlier, and that he had not reported it stolen.

Burchard admitted that he owned a 600-acre farm on State Route 408 West. Agents obtained a search warrant for that location and, in a single-wide mobile home located on the 600 acres, found items including mail that indicated Burchard resided there. Burchard's possession of the premises was confirmed by Reverend Warren, an 86 year-old retired minister whom Burchard allowed to live in a separate house on the farm. Reverend Warren testified that Burchard stopped in to see him and his wife nearly every day, and that he never saw Burchard under the influence of a narcotic. He testified that Burchard had given him several guns sometime in 2003 and asked him to keep them for him, but that Burchard had not seen them or asked to see them since that time, and likely did not know where Reverend Warren had put them in the house.

Officers seized from Burchard's single-wide mobile home a .22 caliber loaded rifle, and drug-related items, including a pipe. Certain of the drug-related items were analyzed and found to contain cocaine. Officers also seized a .12 gauge shotgun from an uninhabited trailer on the property. Five firearms were recovered from the house Reverend Warren and his wife lived in. Another firearm was recovered from the garage near the house. The jury did not convict Burchard of possessing these six firearms.

Mayfield Police officers had contact with Burchard on November 13, 2005 (the date charged in Count III), after receiving a call that one or more persons in a vehicle were unwanted at a home. Burchard consented to a search of his person and his vehicle. As Burchard stood by his vehicle, he removed his boot per the officers' request, and a glass pipe containing wire mesh fell out of it and broke. The glass tested negative for cocaine, but the copper mesh tested positive. Officers found a .22 caliber handgun with an obliterated serial number on the floorboard of the driver's side of Burchard's vehicle. Burchard reported buying the gun recently.

On November 14, 2005, police executed another search warrant for Burchard's blood and urine. Ryan Johnson, a forensic science specialist at the Kentucky State Police forensic central laboratory, testified that he examined Burchard's samples drawn on November 14, 2005, as well as samples that had been drawn on October 13, 2005 at Lourdes Hospital, and that all samples tested positive for cocaine. Johnson testified that generally, cocaine remains in the blood for a maximum of twelve hours; thus the samples drawn on November 14, 2005 would not have contained cocaine ingested on or about October 13, 2005. He also testified that the levels of cocaine found in Burchard's blood indicated direct ingestion, as opposed to breathing in someone else's smoke.

Several witnesses testified for the defense, including Burchard's son and daughter, in good part regarding the guns found at the house in which Reverend Warren lived. As mentioned, the jury did not convict Burchard of possessing the 6 firearms found in that house and a garage nearby.

The district court denied Burchard's motion for a judgment of acquittal. The jury found Burchard guilty of Counts I and III, and of possessing 3 of the 9 firearms under Count 2. The district court sentenced Burchard to 27 months' imprisonment on each of the three counts, to be served concurrently, a two-year term of supervised release on each of the three counts, also to be served concurrently, and a $6,000 fine. This appeal ensued.

II

Burchard objected to the district court's failure to read his proposed...