U.S. v. Eide, 02-1129.

• Decision Date: 19 July 2002
• Docket Number: No. 02-1129.,02-1129.
• Citation: 297 F.3d 701
• Parties: UNITED STATES of America, Plaintiff/Appellee, v. Russell Dean EIDE, Defendant/Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

297 F.3d 701

UNITED STATES of America, Plaintiff/Appellee, v. Russell Dean EIDE, Defendant/Appellant.

No. 02-1129.

United States Court of Appeals, Eighth Circuit.

Submitted: June 11, 2002.

Filed: July 19, 2002.

Rehearing and Rehearing En Banc Denied: August 22, 2002.^*

John P. Messina, argued, Federal Public Defender, Des Moines, IA, for appellant.

Shawn S. Wehde, argued, Asst. U.S. Atty., Sioux City, IA, for appellee.

Before: MORRIS SHEPPARD ARNOLD, HEANEY, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

Russell Eide was found guilty by a jury of attempting to manufacture 5 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and maintaining a place for methamphetamine manufacturing, in violation of 21 U.S.C. § 856(a)(1). The district court¹ sentenced him to 120 months. We affirm.

On October 20, 2000, Webster City police officers executed a search warrant for Russell Eide's residence based on information from his mother and half sister that he was involved in the manufacture and use of methamphetamine. When officers arrived at Eide's residence they saw materials consistent with the manufacture of methamphetamine, primarily in the basement and an adjacent doghouse. These materials included rags smelling of anhydrous ammonia, a blanket reeking of ether, a tupperware container with a white powdery substance which proved to be pseudoephedrine (a precursor to methamphetamine), a large apple juice jar with a sludge-like substance subsequently found to contain trace amounts of methamphetamine, a five gallon bucket of ether, and large green tanks which could be used to store anhydrous ammonia. Due to the strong odors of ether and anhydrous ammonia, the officers contacted the Division of Narcotics Enforcement (DNE) laboratory team to conduct a more secure investigation and remove hazardous materials.

The DNE team found various items throughout Eide's residence consistent with the manufacture of methamphetamine. In addition to the items found during the initial search, the team seized two air tanks, a container of acetone, a thermos cooler, and two tops of plastic soda bottles for use as funnels. In Eide's doghouse, the team discovered several packages of lithium camera batteries, several cans of engine starting fluid, a Pyrex dish, and a container of muriatic acid. In Eide's garage were a liquid propane tank and cans of starting fluid with puncture marks. Under his bed officers found various paraphernalia, including a locked Sentry lockbox containing a balance scale, a postal scale, two glass tubes, white tablets in a plastic bag, a bag containing six glass tubes, a marijuana pipe, and a black leather bag with clear plastic baggies in it.

During the course of the search, officers also found a gas mask and a blender with white powder residue. They also found a plastic container they had seen in Eide's vehicle three days earlier during a traffic stop. At the time of the stop, officers had suspected that Eide was involved in the manufacture of methamphetamine because they saw in his vehicle items commonly used in the theft of anhydrous ammonia — a plastic container, a cut section of bicycle inner tube, and a roll of duct tape.

Eide's former wife testified at trial that she had begun moving out of the house during the month prior to the search because of his involvement in the manufacture of methamphetamine. She reported smelling chemical and ether-like odors from the basement. She also saw a can of muriatic acid, a blender with white powder in it, and coffee filters. The filters were seen in the basement where Eide allegedly manufactured the methamphetamine. Eide's half sister testified that on the day before police searched Eide's residence she had gone into the basement and seen an apple juice jar with yellow liquid in it, a couple of bags of white powder, coffee filters, and Vicks inhalers. She also reported seeing wadded aluminum foil in other parts of the house.

Chemist Patricia Krahn of the Iowa Division of Criminal Investigation (DCI) testified at trial as the government's drug analysis expert. Krahn testified that she had received a bachelor of science degree in chemistry from the University of Iowa and that she is a member of the Midwestern Association of Forensic Scientists and the Clandestine Laboratory Investigating Chemists. She testified that she had been with the DCI Drug Analysis section for almost six years and had been focusing on clandestine laboratories for close to two and a half years. During that period she had analyzed over 500 clandestine laboratories. She reported that her on the job training at the criminalistics laboratory included both general drug analysis and the analysis of clandestine methamphetamine laboratories and that she had received additional training in both areas through the Drug Enforcement Agency, the FBI academy, and the Midwestern Association of Forensic Scientists. She testified that she had prepared methamphetamine herself by using a typical recipe found in Iowa and that she helped teach law enforcement officers about clandestine methamphetamine laboratories. Her teaching covers items found in such labs, the methods used in them, and techniques for sampling materials taken from them.

In her official report on Eide's laboratory, Krahn determined that the substances found in Eide's residence — punctured engine starting fluid cans, muriatic acid, lithium batteries, and pseudoephedrine precursor — were consistent with an intention to manufacture methamphetamine using the lithium ammonia reduction method. She also reported that it would have been necessary to add anhydrous ammonia to create the reaction needed to produce methamphetamine.

Krahn calculated that the amount of chemicals seized from Eide's residence would have yielded 10.1 to 12.6 grams actual (pure) methamphetamine. She based this yield on her study of a number of specific factors, including substances seized from Eide's property, the report of the criminalist that attended the scene, agent notes, photographs taken during the execution of the search warrant, and an Iowa DCI study. Krahn testified that the white powder seized from Eide's doghouse weighed 79 grams and contained 35 percent pseudoephedrine, a precursor of methamphetamine. The actual amount of pseudoephedrine was 27.6 grams. Krahn calculated that the highest possible yield of actual methamphetamine from this precursor was 25.39 grams (92 percent of 27.6 grams of pseudoephedrine). She then calculated the likely yield from Eide's manufacturing processes based on the amount of by-product (CMP) left in the sludge at the bottom of the apple juice jar found in Eide's basement. Krahn tested samples from that and determined that the sludgelike liquid was consistent with engine starting fluid and contained pseudoephedrine, a small amount of methamphetamine, and very little CMP, indicating that Eide had achieved a "fairly good conversion" of precursor to methamphetamine.² This low amount of CMP led Krahn to conclude that Eide would have attained a 40 to...