U.S. v. Engler

• Decision Date: 09 April 2008
• Docket Number: No. 06-4157.,No. 07-1104.,06-4157.,07-1104.
• Citation: 521 F.3d 965
• Parties: UNITED STATES of America, Appellee, v. Carla Grace ENGLER, Appellant. United States of America, Appellee, v. Michael Thomas Gatena, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

521 F.3d 965

UNITED STATES of America, Appellee, v. Carla Grace ENGLER, Appellant.

United States of America, Appellee, v. Michael Thomas Gatena, Appellant.

No. 06-4157.

No. 07-1104.

United States Court of Appeals, Eighth Circuit.

Submitted: September 25, 2007.

Filed: April 9, 2008.

Eric D. Tindal, argued, Williamsburg, IA for appellant Engler.

Stephen Arthur Swift, argued Cedar Rapids, IA, for appellant Gatena.

Daniel C. Tvedt, argued, Cedar Rapids, IA, for appellee.

Before BYE, BENTON, and SHEPHERD, Circuit Judges.

SHEPHERD, Circuit Judge.

Following the district court's¹ denial of their motions to suppress evidence, Carla Grace Engler and Michael Thomas Gatena were convicted by a jury. Engler was convicted of: (1) conspiracy to manufacture 50 grams or more of pure methamphetamine ending in June of 2005; (2) manufacture and attempted manufacture of 5 grams or more of pure methamphetamine within 1,000 feet of a school on December 30, 2004; (3) possession of red phosphorus with intent to manufacture methamphetamine on January 30, 2005; (4) manufacture and attempted manufacture of 5 grams or more of pure methamphetamine within 1,000 feet of a school on June 5, 2005; and (5) failure to appear for trial on October 24, 2005. Gatena was convicted of: (1) conspiracy to manufacture 50 grams or more of pure methamphetamine within 1,000 feet of a school while on pretrial release, ending in June of 2005, (2) manufacture and attempted manufacture of 50 grams or more of pure methamphetamine on November 18, 2004, (3) manufacture and attempted manufacture of 5 grams or more of pure methamphetamine within 1,000 feet of a school on December 30, 2004, and (4) manufacture and attempted manufacture of 5 grams or more of methamphetamine within 1,000 feet of a school while on pretrial release on June 5, 2005. Engler was sentenced to a stipulated term of 361 months imprisonment. Gatena was sentenced to 470 months imprisonment. From their convictions, Engler and Gatena appeal. Additionally, Gatena appeals his sentence. The appeals are consolidated. We affirm the convictions and Gatena's sentence.

I.

We recite the facts in the light most favorable to the jury's verdicts. United States v. Honarvar, 477 F.3d 999, 1000 (8th Cir.2007). Engler and Gatena were involved in the manufacture, attempted manufacture and conspiracy to manufacture methamphetamine. At some time prior to meeting Engler, Gatena started making methamphetamine. Engler joined him in the manufacture of methamphetamine in 2004. In 2004, Engler and Gatena were a couple living in the same residence. Gatena was the "cook" who manufactured the methamphetamine and Engler's role was to organize the other participants and obtain the precursors for Gatena's use in the manufacture. They used the red phosphorus method of making methamphetamine. For this method, some of the necessary supplies include: pseudoephedrine, which can be obtained from over-the-counter sinus medications; red phosphorus, which can be obtained by removing the striker plate from matchbooks that have been soaked in Heet² or isopropyl alcohol; and iodine crystals, which can be made using hydrogen peroxide, muriatic acid, and iodine. Engler and several other people visited numerous grocery stores, discount stores and pharmacies to obtain products containing the needed supplies. Once the supplies were obtained, Gatena would make the methamphetamine while Engler and the others waited in another part of the residence. Gatena's children were present in the home while Gatena manufactured the methamphetamine. The other people who helped them obtain the precursors would be paid with a portion of the final product of the methamphetamine "cook".

Prior to their, arrest, Engler and Gatena lived together at an apartment located at Mud Lake on Rock Grove Court and later at a house located at 101 East 29th Street in Dubuque, Iowa. Following their move to the 29th Street residence, Gatena continued to maintain his access to the apartment at Mud Lake on Rock Grove Court. Gatena "cooked" the methamphetamine at both the 29th Street and Rock Grove Court addresses. The evidence established that Gatena stored, manufactured, and sold methamphetamine at each of the residences which he shared with Engler.

After receiving information about the manufacture of methamphetamine by Engler and Gatena, law enforcement officers obtained search warrants for the two residences shared by Engler and Gatena on three different occasions. Engler and Gatena were subsequently indicted and arrested. Following the denial of their motions to suppress evidence, they were tried by a jury and convicted.

II.

Engler argues that the district court erred in denying her motion to suppress evidence obtained during the execution of three search warrants at the residence she and Gatena shared at 101 East 29th Street, Dubuque, Iowa, as well as the January 30, 2005, warrantless search of her person and Gatena's vehicle, which Engler was driving.

The search warrants on Engler's residence were served on November 18, 2004; December 30, 2004; and June 5, 2005. Engler argues that the search warrant of November 18, 2004, was obtained based on a defective affidavit and that the district court erred in denying her request for an evidentiary hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Further, Engler alleges that the evidence obtained as a result of the execution of the December 30, 2004, search warrant at her home should have been suppressed due to errors in the application for search warrant. Engler also argues that all evidence seized as a result of the execution of the subsequent June 5, 2005 search warrant should have been suppressed as "fruit of the poisonous tree" because the basis for this search warrant was evidence and information obtained as a result of the allegedly improper search warrants of November 18, 2004, and December 30, 2004. Additionally, Engler contends that the warrantless canine and inventory searches of the vehicle she was driving on January 30, 2005, were improper because the government failed to offer sufficient proof to establish the existence of probable cause or an inventory exception to the general prohibition against a search absent probable cause. Finally, Engler asserts that the trial court erred by failing to follow the procedure established in United States v. Bell, 573 F.2d 1040 (8th Cir.1978), with respect to out-of-court coconspirator statements..

Gatena raises three issues on appeal. Like Engler, Gatena asserts that the district court erred in failing to comply with the procedures set forth in Bell.³ Additionally, Gatena argues that there was insufficient evidence to establish that he aided and abetted the manufacture of 50 grams or more of methamphetamine on December 30, 2004. Lastly, Gatena avers that the district court erred when it determined the drug quantity for which Gatena was held accountable for purposes of determination of his offense level and sentence.

III.

We find that the searches were supported by probable cause, and the district court properly denied Engler's motion to suppress as well as her request for a Franks hearing. On appeal of a motion to suppress, we review the factual findings for clear error, and the legal findings are reviewed de novo. United States v. Bell, 480 F.3d 860, 863 (8th Cir.2007). We review the denial of a Franks hearing for abuse of discretion. United States v. Snyder, 511 F.3d 813, 816 (8th Cir.2008).

We first address Engler's arguments concerning the November 18, 2004, search of the 29th Street residence. To prevail in her request for a Franks hearing, Engler must demonstrate that a law enforcement official either recklessly or deliberately included a false statement in the affidavits in support of the search warrants or omitted a truthful statement from the affidavits. United States v. Brown, 499 F.3d 817, 821 (8th Cir.2007), cert, denied, ___ U.S. ___, 128 S.Ct. 1222, ___ L.Ed.2d ___ (2008). Further, Engler "must make a substantial preliminary showing of a false or reckless statement or omission and must also show that the alleged false statement or omission was necessary to the finding of probable cause." United States v. Gabrio, 295 F.3d 880, 883 (8th Cir.2002). Such a showing is not easily made. Id. Engler must show that if the allegedly unsupported content in the warrant affidavit is ignored, the remaining contents of the affidavit would not be enough to establish probable cause. Brown, 499 F.3d at 821. We agree with the district court's analysis that Engler cannot establish the requisite preliminary showing of a false or reckless statement or omission which was necessary to a finding of probable cause. Likewise, Engler failed to establish that if the allegedly unsupported information is ignored the remainder of the information presented in support of the search warrant would be insufficient to establish probable cause.

Engler challenges the denial of her request for a Franks hearing asserting that law enforcement officers deliberately or recklessly: (1) failed to verify the information provided by a confidential informant; (2) failed to attach information on one of the two confidential informants; (3) used a confidential informant upon whose information no prior arrests were based; (4) omitted addresses from paragraphs 2 through 8 of the affidavit; and (5) omitted statements indicating that Engler and Gatena were no longer romantically linked. We cannot find that the district court erred. Engler made these assertions without any supporting proof that they are accurate. She provided no evidence to establish that law enforcement officers deliberately or recklessly omitted information in an attempt to mislead the issuing judicial officer. Moreover, Engler did not provide an explanation for the absence of such evidence. She failed to make a preliminary showing that a Franks hearing was necessary and therefore the denial of the...