U.S. v. Deninno, 93-6278

• Decision Date: 14 July 1994
• Docket Number: No. 93-6278,93-6278
• Citation: 29 F.3d 572
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bonard Ray DENINNO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 572

29 F.3d 572

UNITED STATES of America, Plaintiff-Appellee, v. Bonard Ray DENINNO, Defendant-Appellant.

No. 93-6278.

United States Court of Appeals Tenth Circuit.

July 14, 1994.

Rehearing and Suggestion for Rehearing In Banc Denied Aug. 8, 1994.

M. Jay Farber, Asst. U.S. Atty. (Vicki Miles-LaGrange, U.S. Atty., with him on the brief), Oklahoma City, OK, for plaintiff-appellee.

William P. Earley, Asst. Federal Public Defender, Oklahoma City, OK, for defendant-appellant.

Before TACHA and BRORBY, Circuit Judges, and BROWN, ^* District Judge.

BRORBY, Circuit Judge.

Bonard Ray Deninno was convicted of four drug offenses. Mr. Deninno ¹ appeals the denial of a motion to suppress evidence, challenges his convictions, and asserts his sentence was erroneous. We affirm his convictions and his sentence.

I Motion to Suppress

A state court issued a search warrant directing the search of a specific motel room. When the warrant was executed, Mr. Deninno was found in the motel room together with controlled substances and paraphernalia used in the manufacture of methamphetamine. Expert witnesses concluded a methamphetamine lab was installed and the parties were in the process of manufacturing methamphetamine.

Mr. Deninno moved to suppress the evidence found in the motel room asserting the affidavit supporting the issuance of the search warrant failed to show the existence of probable cause. The trial court found the motel room was registered to another and as Mr. Deninno failed to establish a reasonable expectation of privacy in the motel room, Mr. Deninno lacked standing to challenge the search. Alternatively, the trial court examined the affidavit in detail and concluded the search warrant was properly issued based upon an adequate showing of probable cause contained in the affidavit supporting the application for the search warrant. The motion to suppress the evidence found in the motel room was denied by the trial court.

Mr. Deninno appeals the denial of his motion to suppress. Mr. Deninno ignores the trial court's conclusion he lacked standing. In his brief, Mr. Deninno simply argues the absence of probable cause in the supporting affidavit.

It is fundamental law that a person desiring to have evidence suppressed must first show he has standing to object to the search. See United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). The facts contained in the record on appeal show the motel room was registered to another person. The facts were not in dispute as Mr. Deninno offered no contrary facts in his motion to suppress. The trial court properly found Mr. Deninno had not established a reasonable expectation of privacy in the motel room. See United States v. Carr, 939 F.2d 1442, 1446 (10th Cir.1991). Mr. Deninno did indeed fail to meet his burden to show he had standing to object to the search. For this reason, we need not address Mr. Deninno's arguments relating to the alleged absence of probable cause in the supporting affidavit.

II Sufficiency of the Evidence

On appeal, Mr. Deninno challenges the sufficiency of the evidence to support the jury's verdict. We review the sufficiency of the evidence to determine if a reasonable juror could find beyond a reasonable doubt, from the evidence along with reasonable inferences, that Mr. Deninno was guilty. See United States v. Nicholson, 17 F.3d 1294, 1298 (10th Cir.1994). We view the evidence in the light most favorable to the government. United States v. Fleming, 19 F.3d 1325, 1328 (10th Cir.1994).

The evidence supporting Mr. Deninno's guilt is overwhelming. Four individuals testified that at the request of Mr. Deninno they came to Oklahoma City and brought with them the glassware and chemicals to manufacture methamphetamine. According to the testimony, Mr. Deninno knew how to manufacture methamphetamine. Two of the individuals testified they worked all night in a motel room extracting ephedrine to start the process of manufacturing methamphetamine. Mr. Deninno periodically checked on their progress throughout the evening correcting them when mistakes were made. The next morning, Mr. Deninno gave one of the witnesses $1,000 and instructions to purchase the necessary equipment and other essential chemicals for the continued manufacture of methamphetamine.

When the search warrant was executed, the agents found in the motel room a methamphetamine lab and 1.8 liters of a liquid precursor containing detectable amounts of methamphetamine. Additionally, 8.5 grams of methamphetamine were found in Mr. Deninno's luggage. Expert witnesses testified the equipment found in the motel room was a methamphetamine lab and further testified that methamphetamine was in the process of being "cooked" at this lab in the motel room.

A. Conspiracy to Manufacture Methamphetamine:

Mr. Deninno argues that there was no physical evidence methamphetamine was to be manufactured and that the evidence offered by the government shows it was a factual impossibility to manufacture methamphetamine as all of the necessary chemicals were not present. Mr. Deninno further argues that the government may have shown a conspiracy to extract ephedrine, a precursor to methamphetamine, but failed to show Mr. Deninno became a part of such an agreement.

Mr. Deninno's argument merits little discussion. When a jury decides guilt or innocence, it must not close its eyes to the reasonable inferences that can be drawn from the physical evidence. The evidence is clear the parties intended and agreed to manufacture methamphetamine and the process was well under way when they were apprehended. The evidence also shows Mr. Deninno's involvement: he invited the participation of the coconspirators; he was the only participant who knew how to manufacture methamphetamine; and he wrote the list of supplies for the coconspirators to purchase.

B. Possession with Intent to Distribute:

Mr. Deninno asserts the 1.8 liter mixture found in the manufacturing process could not be distributed in its liquid condition. Therefore, he argues, the evidence was insufficient to support a finding that he possessed methamphetamine with the intent to distribute the drug. Assuming this mixture could not be "powdered out," i.e., turned into methamphetamine, Mr. Deninno's argument ignores the 8.5 grams of methamphetamine found in vials in his luggage in the motel room. One of the experts testified this was worth approximately $2,000 and was consistent with amounts that are distributed.

C. Maintenance of Place to Manufacture Methamphetamine:

Mr. Deninno asserts the evidence fails to link him to the motel room. The record fails to support Mr. Deninno's assertions. Mr. Deninno ignores the testimony of at least four of the witnesses, who testified Mr. Deninno spent time in the motel room. The witnesses also testified that Mr. Deninno was the one who selected the motel, made the reservations, and directed the other participants to the motel.

III Rule 404(b) Evidence

During its case in chief, the government elicited testimony from Mr. Deninno's coconspirators that Mr. Deninno had been present at various other methamphetamine cooks within the past several months. Mr. Deninno objected to this testimony arguing it was impermissible under Fed.R.Evid. 404(b). The trial court found the evidence was introduced for the proper purpose of showing Mr. Deninno's knowledge of the process of "cooking" methamphetamine. The court also permitted the evidence for the purpose of demonstrating that Mr. Deninno intended to be a part of the conspiracy, because Mr. Deninno was maintaining he was innocently present at the methamphetamine cook. The trial court found the evidence was not unduly prejudicial and properly instructed the jury.

This allegation of error warrants little discussion. Mr. Souders and two other coconspirators testified they were present with Mr. Deninno at recent methamphetamine "cooks"; Mr. Deninno knew how to "cook"; and he carefully guarded the "cooking" process making sure no one but he knew the entire recipe. All three of these individuals also testified that Mr. Deninno had distributed methamphetamine within approximately the same time period. This testimony was relevant to Mr. Deninno's actual participation as opposed to his innocent presence at the cook in the motel room. The testimony also was relevant as to Mr. Deninno's knowledge and ability to manufacture methamphetamine. The court correctly found the probative value of this evidence outweighed any prejudicial effect, and the trial court properly gave a limiting instruction immediately prior to the introduction of this testimony.

We review a trial court's admission of 404(b) evidence for abuse of discretion. United States v. Reddeck, 22 F.3d 1504, 1509 (10th Cir.1994). We find no error with the actions of the trial court.

IV Instructional Error

Mr. Deninno argues error in the trial court's instruction to the jury concerning the essential elements of the charge of possession of a mixture containing a detectable amount of methamphetamine and the collateral instruction that the government was not required to prove an exact amount of a controlled substance. ²

The instructions given by the trial court informed the jury that the evidence need not establish the amount or quantity of the controlled substance or listed precursor chemical as alleged in the indictment. The court instructed the jury it must find only that there existed a measurable amount of the controlled substance or listed precursor chemical. Mr. Deninno tendered an instruction that would require the jury to find Mr. Deninno possessed 1.8 liters of a substance containing a detectable amount of methamphetamine.

Without any authority, Mr. Deninno asserts the court's instruction to the jury was erroneous. Again, this argument merits little discussion. We regard United States v. Poole, 929 F.2d 1476, 1483 (10th Cir.1991) as dispositive. In Poole, we held a defendant need only possess a measurable...