U.S. v. Burks, No. 90-1310

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: Before McMILLIAN and BOWMAN; CAHILL; BOWMAN
• Citation: 934 F.2d 148
• Parties: UNITED STATES of America, Appellee, v. James BURKS, Appellant.
• Docket Number: No. 90-1310
• Decision Date: 11 June 1991

Page 148

934 F.2d 148 UNITED STATES of America, Appellee,
v.
James BURKS, Appellant. No. 90-1310. United States Court of Appeals,
Eighth Circuit. Submitted Aug. 28, 1990.
Decided May 14, 1991.
Rehearing Denied June 11, 1991.

Page 149

Law Offices of Susan G. James and Jeffery C. Duffy, A.S. Agricola, Jr., Montgomery, Ala., for appellant.

William M. Cromwell, Fort Smith, Ark., for appellee.

Before McMILLIAN and BOWMAN, Circuit Judges, and CAHILL, ^* District Judge.

CAHILL, District Judge.

James Burks appeals his conviction from the District Court ¹ for one count of attempting to deliver amphetamines, a violation of 21 U.S.C. Sec. 841. Burks raises three issues on appeal. First, he contends that

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the trial court erred in overruling defendant's motion for an acquittal when the evidence failed to show that appellant possessed amphetamine. Second, Burks contends the trial court erred in admitting evidence of prior conduct of defendant. Third, Burks contends that the trial court erred in its calculation of the offense category by finding: (a) that the defendant intended to manufacture seven pounds of amphetamine, and (b) that the defendant possessed a firearm during the commission of the offense. We affirm in part and reverse in part.

I. Facts.

During the year 1988, James Burks was identified and subsequently became the subject of an investigation by the Arkansas State Police as an individual involved in the manufacture and distribution of amphetamines. In November of 1988, Arkansas State Police Criminal Investigator Steve Clemmons, while working undercover, held a conversation with James Burks. During this conversation Burks offered to sell Clemmons an amphetamine lab for $50,000. Burks stated that this lab was capable of producing seven or eight pounds of amphetamine. Subsequently, no transaction concerning this lab ever occurred nor did the undercover officer ever see the actual lab in question. In December of 1988, Drug Enforcement Administration officials received information that Burks and another individual had transported a 110 pound barrel of phenylacetic acid ² from New Jersey back to Ashdown, Arkansas, where Burks currently resided.

On January 10, 1989, a confidential informant approached Burks wanting to purchase six ounces of amphetamine in exchange for $6,000. The state police recorded the conversation. The following day the informant was given $6,000 in marked government funds and was also again equipped with a recording device. At their meeting Burks related to the informant that the procedure for the transaction would be for Burks to take the money to the supplier of the amphetamine. Later that day this supplier would notify Burks of the location of the amphetamines for pick-up. Of the $6,000 buy money, $900 was given to the informant as his "cut" for arranging the transaction.

After this meeting, Burks and his wife left their house in Burks' truck and headed for the interstate in the direction of the Oklahoma state line. Police then stopped Burks on this highway and placed him under arrest for the attempted delivery of a controlled substance. Burks was searched upon arrest and $5,100 in government buy money was recovered from Burks' rear pants pocket. While in custody, and pursuant to a search warrant on Burks' home, police did seize a 9 mm. semi-automatic pistol with three loaded 30 round magazines.

At trial Burks contended that he never intended to deliver any controlled substances to the informant. Burks argued that he was simply attempting to recover a portion of loans he had previously made to the informant. After a trial of the case, the jury found the defendant guilty as charged in the one-count indictment.

At sentencing, the court found that the amount of controlled substance involved was seven pounds rather than six ounces, and also found that Burks possessed the 9 mm. pistol at the time of the offense. The defendant was sentenced to 104 months, a $15,000 fine, and five years of supervised release.

II. Admission of Other Evidence of Other Offenses.

Appellant's first contention on appeal is that the district court should not have admitted evidence of prior conduct of the appellant that tended to show (1) that the defendant assisted another person in bringing 100 pounds of phenylacetic acid from New Jersey to Arkansas; and (2) that the defendant offered to sell an amphetamine laboratory to an undercover agent

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approximately two months prior to the alleged offense. The trial court is given great latitude in ruling on the admissibility of prior bad acts and will not be overturned as long as (1) the evidence is relevant to an issue in question; (2) a jury could reasonably find, by a preponderance of the evidence, that the defendant committed the prior acts; and (3) its probative value is not outweighed by potential unfair prejudice. See Huddleston v. United States, 485 U.S. 681, 689-90, 108 S.Ct. 1496, 1501-02, 99 L.Ed.2d 771 (1988); United States v. Schleicher, 862 F.2d 1320, 1322-23 (8th Cir.1988), cert. denied, 489 U.S. 1058, 109 S.Ct. 1326, 103 L.Ed.2d 594 (1989).

The evidence linking Burks to the phenylacetic acid purchase was adduced on cross-examination after Burks denied any involvement with narcotics. Additionally, rebuttal testimony by the Government's chemist revealed that phenylacetic acid is a precursor to amphetamines and is on the Drug Enforcement Administration watch list. Burks' denial of any involvement with amphetamines or narcotics reinforces the admissibility of the evidence in order to establish intent and knowledge to commit the crime charged. See United States v. Lewis, 759 F.2d 1316, 1349 (8th Cir.), cert. denied, 474 U.S. 994, 106 S.Ct. 406, 88 L.Ed.2d 357 (1985).

Burks' further denial of any association with the undercover officer could properly be rebutted by testimony of the officer as to the proposed sale of the laboratory. See United States v. Felix, 867 F.2d 1068 (8th Cir.1989). We fail to see any error on the part of the trial court in the admission of any of this evidence.

III. Sufficiency of the Evidence.

Burks contends that the evidence is...