U.S. v. Culpepper, Nos. 86-2867
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
| Writing for the Court | Before HOLLOWAY, Chief Judge, ANDERSON; ALLEY |
| Citation | 834 F.2d 879 |
| Parties | 24 Fed. R. Evid. Serv. 213 UNITED STATES of America, Plaintiff-Appellee, v. Walter A. CULPEPPER, Jr., Defendant-Appellant. |
| Docket Number | 87-2529,Nos. 86-2867 |
| Decision Date | 07 December 1987 |
Page 879
v.
Walter A. CULPEPPER, Jr., Defendant-Appellant.
Tenth Circuit.
Page 880
Robert S. Streepy, Asst. U.S. Atty., Kansas City, Kan. (Benjamin L. Burgess, Jr., U.S. Atty., Kansas City, Kan., was also on the brief), for plaintiff-appellee.
Vicki Mandell-King, Asst. Federal Public Defender, Denver, Colo. (Michael G. Katz, Federal Public Defender, Denver, Colo., was also on brief), for defendant-appellant.
Before HOLLOWAY, Chief Judge, ANDERSON, Circuit Judge, and ALLEY *, District Judge.
ALLEY, District Judge.
Walter A. Culpepper, Jr. was convicted after a jury trial of two counts of possession with the intent to distribute more than fifty kilograms of marijuana, in violation of 21 U.S.C. Sec. 841(a). The government's theory of the case was "constructive possession." On appeal, Culpepper argues that his convictions should be reversed because: (1) the evidence was insufficient to support the verdict; (2) the trial court committed plain error in allowing testimony concerning his uncharged bad acts; and (3) the trial court abused its discretion in refusing to allow the jury to view one of the fields in which the marijuana was located. For the reasons set forth below, we affirm.
Factual Background
On August 6, 1986, Frank Michael Gassman, an undercover agent assigned to the Federal Drug Enforcement State and Local Task Force, was introduced to appellant Culpepper by a confidential informant at a motel in Denver, Colorado. Culpepper told Gassman that he had hidden several garbage bags of marijuana near a highway fifty miles east of Denver. Upon Culpepper's request, Gassman accompanied Culpepper to this location, where the latter retrieved the marijuana.
Gassman then explained to Culpepper that he was acting as a middleman for a person who wanted to purchase a large amount of marijuana. Culpepper responded that he might be interested in selling two fields of marijuana, located in Kansas. He told Gassman that the marijuana in each of these fields was ready to be harvested and that, because he had another field that he needed to harvest himself, it would be more convenient if Gassman would purchase both of the Kansas fields and harvest them on his own.
On the following day, August 7, 1986, Gassman returned to the motel and met with Culpepper again. He paid him $800 for the marijuana that the two of them had retrieved from a hiding place on the preceding day. Culpepper told Gassman that he would sell each of the fields that he had mentioned for $5,000 and that each field would produce between five and ten tons of marijuana. After Gassman agreed to purchase them for this price, the two decided that they would drive to the fields on the following day.
On August 8, 1986, Gassman returned to the motel accompanied by undercover agent Robert Vette, also assigned to the Federal Drug Enforcement State and Local Task Force. Gassman told Culpepper that Vette was his brother and would help harvest the marijuana. Culpepper, Gassman, and Vette then left for Kansas. During the drive, Culpepper told Gassman and Vette that he and three or four others had planted marijuana seeds in the two fields about ten years ago. He also advised Gassman and Vette of the different ways that marijuana could be harvested.
In Goodland, Kansas, the three men stopped at a store from which Culpepper said he wished to obtain some gloves and snippers for use in the harvest. Culpepper
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told the two agents that, as he did not have the money to pay for these two items, he would shoplift them. However, Culpepper could find neither gloves or snippers in the store and took nothing from it. Before leaving the premises, Culpepper pointed out some infrared lamps to Gassman and told him that those were the kind needed to dry harvested marijuana.Late on the evening of August 8, 1986, Culpepper, Gassman, and Vette checked into a motel in Junction City, Kansas. Although Culpepper told Gassman and Vette that he wanted to show them the fields that night because he did not want to be seen, Gassman convinced him to wait until the next morning. At the motel bar that night, Culpepper told Vette that he had harvested marijuana from the fields on many occasions.
The following morning, Culpepper directed Gassman and Vette to the first of the fields, located on the Fort Riley Military Reservation in a clearing surrounded by trees. The three men reached the field by driving to the end of a dirt road and walking down a path through heavy underbrush for about a quarter of a mile.
Both Gassman and Vette testified that the first field contained healthy marijuana plants, with mature stalks, numerous buds, and a high concentration of T.H.C. Both testified that there were marijuana plants as far as they could see and that there were well more than a hundred plants there. From the quality of the marijuana plants he observed in the field, Gassman believed that Culpepper was telling the truth about planting marijuana seeds there. After walking around part of the field, Culpepper, Gassman, and Vette returned to the car. As they were leaving, Culpepper pointed out a large ditch and told the agents that he usually hid marijuana in it after his harvests.
Culpepper, Gassman, and Vette then drove to Kansas City, Kansas to view the second field, located in an isolated area between a gravel road and a railroad track. Both agents testified that the marijuana plants in the field were spread out along a strip approximately three-fourths of a mile long and fifty to sixty feet wide and that there were well over a hundred marijuana plants there also. According to Gassman, the plants in this second field appeared to be of good quality. Before the three men left the second field, Culpepper pointed out a part of it where he had stored garbage bags, gloves, and snippers for harvesting the marijuana. He also stated that the marijuana that he had sold to Gassman in Denver came from this field.
Upon leaving the second field, Culpepper told the agents that he wanted to be paid for the two fields. The three...
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