U.S. v. Chard, s. 96-3255

• Decision Date: 18 June 1997
• Docket Number: Nos. 96-3255,96-3990,s. 96-3255
• Citation: 115 F.3d 631
• Parties: UNITED STATES of America, Appellee, v. Bobby Michael CHARD, Appellant. UNITED STATES of America, Appellee, v. Robert Donald JAMES, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 631

115 F.3d 631

UNITED STATES of America, Appellee, v. Bobby Michael CHARD, Appellant.

UNITED STATES of America, Appellee, v. Robert Donald JAMES, Appellant.

Nos. 96-3255, 96-3990.

United States Court of Appeals Eighth Circuit.

Submitted April 17, 1997.

Decided June 18, 1997.

Richard D. Jacoby, Kansas City, Missouri, argued (James Martin Davis, Omaha, Nebraska, on the brief), for Appellants.

Christina Y. Tabor, Kansas City, Missouri, argued (Stephen L. Hill, Jr., U.S. Attorney, on the brief), for Appellee.

Before LOKEN, MAGILL, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

MAGILL, Circuit Judge.

Bobby Michael Chard and Robert Donald James were found guilty by a jury of aiding and abetting the possession of methamphetamine with the intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) (1994). In addition, the jury found James guilty of conspiring to manufacture methamphetamine, in violation of 21 U.S.C. § 846 (1994). Both Chard and James appeal their convictions. Chard argues that his conviction should be reversed because: (1) the district court ¹ erred by denying his motion for severance; (2) the district court erred by allowing the expert testimony of John Meyers, senior forensics chemist for the Drug Enforcement Agency (DEA); and (3) the evidence was insufficient to support his conviction. James argues that the district court erred by admitting evidence to impeach the testimony of a defense witness. We affirm.

I.

On March 15, 1996, the police executed a search warrant on Chard's house in Independence, Missouri. Chard was in the house when the police arrived and Chard was arrested. Chard told DEA agent L.D. Mathews that James and James's family lived in the house. James was not present when the police executed the search warrant. Chard also told agent Mathews that Chard only maintained a bedroom in the house. James was arrested later.

Upon searching Chard's house, the investigating officers found methamphetamine and numerous items related to the manufacture of methamphetamine. In the basement, the officers found a well-stocked methamphetamine-manufacturing laboratory containing the ingredients used to make methamphetamine as well as a variety of glassware used in the manufacture of methamphetamine. For example, in the laboratory the officers found a 6000-milliliter Erlenmeyer flask, several round-bottom flasks, and several 1000-milliliter Pyrex filter flasks. The officers also found a glass container, still in the manufacturer's packaging, labeled Mallinckrodt hydriodic acid, two five-gallon containers labeled hydrochloric acid, boxes of glass beakers and test-tubes, several scales and balances, a hot plate, a heat-sealer machine, empty acetone and Coleman fuel cans, a bottle of nicotinamide powder that could be used as a cutting agent for methamphetamine, and 240 bottles of Mini-thin ephedrine tablets containing 250 tablets each. Mini-thin tablets can be easily converted into a chemical agent that is commonly used in the production of methamphetamine.

In Chard's bedroom, the investigating officers found a digital scale, distribution-sized quantities of powdered methamphetamine in plastic baggies, a copy of the book "Secrets of Methamphetamine Manufacture," a binder that contained photocopied pages from that book, and an address book listing an address where Mini-thin ephedrine tablets can be purchased. In James's bedroom, the investigators found police scanners and radio equipment of the type used by drug dealers for counter-surveillance, a plastic baggie containing methamphetamine, and some handwritten papers referring to "dope" and "meth" dealing.

In Chard's truck, the investigators found items commonly used for the manufacture of methamphetamine, including a plastic baggie containing 83 grams of nicotinamide powder, two 550-gram empty cans of red phosphorous, a Red Devil lye can, and numerous acetone and Coleman fuel cans. The investigators also found a box containing 248 empty bottles of 250-count Mini-thin ephedrine tablet bottles.

In James's truck, the investigators found six, pint-size jars of a liquid that contained methamphetamine, a bottle of Mini-thin ephedrine tablets like the ones found in Chard's truck and the basement, a plastic baggie containing 32.4 grams of red phosphorous, and one jar of iodine crystals. A sample of the liquid from one of the pint-size jars of methamphetamine solution contained 279 milligrams per milliliter of D-methamphetamine, which can produce 132 grams of powder D-methamphetamine. Further testing of three of the five other jars revealed that they also contained similar amounts of D-methamphetamine solution which could produce between 114 and 143 grams of powder D-methamphetamine each.

On April 12, 1995, Chard and James were both charged by a grand jury with various crimes relating to the manufacture and distribution of methamphetamine. On April 17, 1995, Chard, who had been released pending trial, went to the DEA office and gave to agent Mathews an envelope of papers. The envelope contained lists of items commonly used to manufacture methamphetamine, such as filters, butane gas, trash bags, ice, gloves, water, Coleman fuel, red phosphorous, and P2P, a reference to the chemical agent methylamine which is used in the process of cooking methamphetamine. The papers also contained several drawings of apparatuses that are used to manufacture methamphetamine. Some of the papers were stained with red phosphorous. There were also papers with notations of police scanner frequencies that could be used for counter-surveillance efforts. Chard stated that all of these papers belonged to James and that Chard himself had nothing to do with any criminal activity that may have been taking place in his house.

Before trial, Chard moved the district court to sever Chard's trial from James's trial. The district court denied Chard's motion.

At trial, the prosecution sought to prove that Chard and James had manufactured methamphetamine in Chard's house using the ephedrine reduction method. After several of the investigating officers testified regarding the results of the search, DEA agent Mathews and DEA senior forensics chemist Meyers explained to the jury how, using the ephedrine reduction method, methamphetamine could be manufactured by using the chemicals found in the trucks and the house. Agent Mathews also testified that, although he tested samples of many of the other ingredients found in the house and the trucks, he did not test the contents of the bottle labeled hydriodic acid, a necessary ingredient to produce methamphetamine using the ephedrine reduction method. Agent Mathews testified that he did not test this bottle because the bottle was clearly labeled and found in its original packaging, and also because the fumes of hydriodic acid can be life threatening.

During Chard's cross-examination of agent Mathews, Chard attempted to elicit from agent Mathews the statements Chard made when Chard was arrested. Specifically, Chard wanted agent Mathews to testify that Chard told agent Mathews that James and not Chard was living in the house owned by Chard. James's attorney objected to this line of questioning, and the district court sustained the objection. Chard was also not allowed to ask agent Mathews about the allegedly exculpatory statements that Chard made when Chard visited agent Mathews at the DEA office.

During senior forensics chemist Meyers's testimony, the government asked Meyers if it were possible to manufacture methamphetamine with the chemicals and glassware found as a result of the search warrant using the ephedrine reduction method. James's counsel objected, arguing that the equipment was incomplete and that there was no evidence of hydriodic acid at the site. The trial court overruled James's objection after the government noted that there had already been testimony that hydriodic acid was found as a result of the search warrant.

The government also presented testimony from James Anthony Childress and Michael Haas, who were both convicted felons and who had both agreed to cooperate with the government. Childress testified that James had sold methamphetamine to Childress. Haas testified that he had helped James obtain ingredients used to manufacture methamphetamine, like those found in the Chard residence and in the trucks belonging to Chard and James.

Michael Ryan, an old friend of James, testified at trial on behalf of James. Ryan testified that at the time of the search, James was no longer living in Chard's home. Ryan also stated that he and James are both against the use of drugs and that Ryan himself has no felony convictions. To rebut Ryan's testimony, over the objection of James's counsel, the testimony of Missouri State Highway Patrol Trooper James Wingo was introduced at trial. Trooper Wingo testified that on October 8, 1994, while he was working as a narcotics...