U.S. v. Clarke

• Decision Date: 08 May 2009
• Docket Number: No. 08-2778.,08-2778.
• Citation: 564 F.3d 949
• Parties: UNITED STATES of America, Appellee, v. Pamela CLARKE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

564 F.3d 949

UNITED STATES of America, Appellee, v. Pamela CLARKE, Appellant.

No. 08-2778.

United States Court of Appeals, Eighth Circuit.

Submitted: February 10, 2009.

Filed: May 8, 2009.

Gilbert Chester Sison, argued, St. Louis, MO, Natt Scott Rosenblum, on the brief, for appellant.

Sam Bertolet, argued, St. Louis, MO, Jeannette S. Graviss, AUSA, on the brief, for appellee.

Before RILEY, SMITH, and SHEPHERD, Circuit Judges.

RILEY, Circuit Judge.

A federal grand jury indicted Pamela Clarke (Clarke) on five federal drug charges related to manufacturing and distribution of methamphetamine. Before trial, the district court¹ denied Clarke's motion to suppress evidence obtained during police searches of Clarke's residence. At trial, the district court allowed the government to cross examine Clarke regarding Clarke's methamphetamine use and pseudoephedrine purchases, and denied Clarke's motion for judgment of acquittal. A jury found Clarke guilty on four of the five charges. At sentencing, the district court overruled Clarke's objection to the amount of methamphetamine involved in the crimes, and sentenced Clarke to 63 months imprisonment. Clarke now challenges the district court's rulings and her sentence. We affirm.

I. BACKGROUND

On August 23, 2005, Officer Timothy Groat (Officer Groat) of the Jefferson County, Missouri, Sheriff's Office received an anonymous tip that methamphetamine was being manufactured at Clarke's home. Officer Groat responded to the tip with several other officers, and upon arrival, the officers smelled a chemical odor around the home which they recognized as consistent with methamphetamine manufacturing. The officers attempted to reach someone in the house by knocking on the door and calling the telephone number listed for the address. After no response, the officers decided to enter the home to ensure the safety of anyone possibly inside. The officers donned air purifying respirators as a precaution to possible methamphetamine manufacturing fumes, and forcibly entered the home.

When the officers entered Clarke's home, they saw Clarke lying on the floor. The officers removed Clarke from the home to ensure Clarke's safety. The officers called the fire department and searched the residence looking for other people inside the home. The fire department responded and ventilated the home. Clarke then gave Officer Groat oral and written consent to search the home. The officers' search of Clarke's residence and a nearby shed revealed items typically used to manufacture methamphetamine, including pseudoephedrine pills. The officers arrested Clarke, and after being Mirandized,² Clarke stated the officers should only find pill binder in her home. Clarke also disclosed she received some pills from a man named Clark and had broken the pills down the day before.

On September 7, 2006, Officer Groat again received information of methamphetamine manufacturing at Clarke's home. Officer Groat responded with several officers, knocked on Clarke's door, and identified himself as with the Sheriff's Office. Clarke answered, opened the door, and gave Officer Groat consent to search the premises. After two other people exited the house, the officers searched Clarke's home and found several items associated with methamphetamine manufacturing. The officers' search of the shed next to Clarke's home revealed a mason jar containing a biphase liquid consistent with methamphetamine production. Officer Groat took three samples of the biphase liquid. Clarke was arrested and Mirandized. Clarke told Officer Groat the biphase liquid belonged to her neighbor, who cooked methamphetamine. The samples subsequently tested positive for containing methamphetamine.

A federal grand jury indicted Clarke on five counts, including: (1) conspiracy to possess pseudoephedrine knowing it would be used to manufacture methamphetamine, in violation of 21 U.S.C. §§ 841(c) and 846; (2) possession of pseudoephedrine knowing it would be used to manufacture methamphetamine, in violation of 21 U.S.C. § 841(c); (3) conspiracy to manufacture fifty or more grams of a mixture or substance containing methamphetamine, in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(B)(viii), and 846; (4) possession with intent to distribute fifty or more grams of a mixture or substance containing methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(viii) and 18 U.S.C. § 2; and (5) maintaining a drug involved premises, in violation of 21 U.S.C. § 856(a)(2).

Before trial, Clarke moved to suppress (1) the evidence obtained during the two searches of Clarke's home, and (2) Clarke's statements to Officer Groat. The district court referred the motion to the magistrate who issued a report and recommendation to deny Clarke's motion. The magistrate found probable cause and exigent circumstances allowed the officers to make the initial warrantless entry of Clarke's home on August 23, 2005, and Clarke gave valid consent to the searches on August 23, 2005, and September 7, 2006. The magistrate also found Clarke's statements were admissible because Clarke voluntarily waived her Miranda rights, and the officers had probable cause to arrest Clarke on both occasions. The district court adopted the magistrate's report and recommendations and denied Clarke's motion to suppress.

Clarke's trial began on May 12, 2008. During the government's case-in-chief, the parties jointly stipulated the three samples of biphase liquid seized by Officer Groat on September 7, 2006, weighed a total of 62.46 grams and contained methamphetamine. At the close of the government's evidence, Clarke made a general motion, without argument, for judgment of acquittal.³ The district court denied the motion, stating there was sufficient evidence to submit all five counts to the jury. Clarke then presented her evidence and testified. During the government's cross examination of Clarke, the government questioned Clarke about Clarke's prior methamphetamine use, Clarke testing positive for methamphetamine on two separate occasions after her arrest and before trial, and Clarke's pseudoephedrine purchases after the September 7, 2006 search of Clarke's home. Clarke's counsel objected to the questioning on Clarke's prior methamphetamine use and Clarke's pseudoephedrine purchases. The district court overruled the objections. At the close of evidence, Clarke renewed, without argument, her motion for judgment of acquittal. The district court again denied the motion. The jury acquitted Clarke on count one of the indictment, but found Clarke guilty on counts two, three, four, and five.

After the jury verdict, a presentence investigation report (PSR), prepared for Clarke, calculated an advisory United States Sentencing Guidelines (U.S.S.G. or Guidelines) range of 63 to 78 months imprisonment. In the PSR, the 62.46 grams of biphase liquid containing methamphetamine stipulated to at trial was used to calculate an offense level of 26 for Clarke. Clarke's counsel objected to using the full amount of the biphase liquid to determine Clarke's offense level, arguing the biphase liquid was waste water which could not be counted as a "mixture or substance" under 18 U.S.C. § 841(b) or U.S.S.G. § 2D1.1. The district court overruled Clarke's objection, adopted the PSR calculation for Clarke's advisory Guidelines range, and sentenced Clarke to the bottom of the range, 63 months imprisonment. This appeal follows.

II. DISCUSSION

A. Motion for Judgment of Acquittal

Clarke first argues the district court erred in denying her motion for judgment of acquittal because the government did not prove Clarke "possessed more than 50 grams of a mixture [or] substance containing methamphetamine." In support of her argument, Clarke urges us to adopt a "market approach" used by some other Circuit Courts of Appeals which only attributes to the defendant the "usable or ingestible" methamphetamine contained in a mixture or substance, rather than the entire amount of any liquid containing methamphetamine. Clarke contends there was insufficient evidence to submit counts three and four to the jury because the biphase liquid was waste water which was not usable, marketable, or traffickable, and the government failed to prove the actual amount of methamphetamine in the biphase liquid.⁴

We review de novo a district court's denial of a motion for judgment of acquittal. United States v. Reddest, 512 F.3d 1067, 1069-70 (8th Cir.2008). We "view the evidence in the light most favorable to the Government" and determine "whether the evidence is sufficient to permit a reasonable jury to conclude that the defendant is guilty beyond a reasonable doubt."⁵ Id. at 1070. Clarke failed to argue at trial that only the "usable or ingestible" amount of methamphetamine in the biphase liquid could be used to prove the weight of the methamphetamine. "`An argument not raised below cannot be raised on appeal for the first time unless the obvious result would be a plain miscarriage of justice.'" United States v. Rees, 447 F.3d 1128, 1130 (8th Cir.2006) (quoting United States v. Gutierrez, 130 F.3d 330, 332 (8th Cir.1997)).

Under 21 U.S.C. § 841(a)(1), a person cannot "manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance." Any defendant convicted under § 841(a)(1) is subject to a mandatory minimum five-year prison sentence under 21 U.S.C. § 841(b)(1)(B)(viii) if the crime involved "50 grams or more of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers, or salts of its isomers."

In United States v. Kuenstler, 325 F.3d 1015, 1023 (8th Cir.2003), this court discussed whether "the § 841(b)(1)(B) phrase `mixture or substance containing a detectable amount of methamphetamine' only applies to usable or marketable mixtures or substances." Relying on the reasoning of Chapman v. United States, 500 U.S. 453, 461, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991),...