U.S. v. Harris, 90-8415

• Citation: 932 F.2d 1529
• Decision Date: 03 June 1991
• Docket Number: No. 90-8415,90-8415
• Parties: , 33 Fed. R. Evid. Serv. 114 UNITED STATES of America, Plaintiff-Appellee, v. Glen HARRIS, Wendell Ray Shackleford, and Robert Wade Townsend, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1529

932 F.2d 1529

20 Fed.R.Serv.3d 381, 33 Fed. R. Evid. Serv. 114

UNITED STATES of America, Plaintiff-Appellee, v. Glen HARRIS, Wendell Ray Shackleford, and Robert Wade Townsend, Defendants-Appellants.

No. 90-8415.

United States Court of Appeals Fifth Circuit.

June 3, 1991.

Brian Pollard, Baker, Hancock & Pollard, Waco, Tex. (Court-appointed), for Harris.

Scott Peterson, Waco, Tex. (Court-appointed), for Shackleford.

Bradley T. Cates, Waco, Tex. (Court-appointed), for Townsend.

Joel R. Marcus, U.S. Dept. of Justice, Washington, D.C., LeRoy Morgan Jahn, Asst. U.S. Atty., Ronald F. Ederer, U.S. Atty., San Antonio, Tex., for U.S.

Appeals from the United States District Court for the Western District of Texas.

Before REAVLEY, HIGGINBOTHAM, and DUHE, Circuit Judges.

DUHE, Circuit Judge:

Raising a variety of challenges, Harris, Shackleford, and Townsend appeal their convictions for conspiracy to manufacture methamphetamine, a violation of 21 U.S.C. Sec. 846. All appellants contend that the district court erred in admitting evidence of their pre-indictment drug activities, and in denying their motion for severance. All three further contend that the trial court improperly instructed the jury on multiple conspiracies, erred in refusing to suppress evidence seized in a warrantless search of Townsend's car, and incorrectly applied the sentencing guidelines. Appellant Townsend also challenges the sufficiency of the evidence supporting his conviction. Finding all contentions meritless, we affirm.

Facts and District Court Proceedings

This tale of murder, mayhem, and methamphetamine recounts the activities of the appellants and several others as they traveled across Texas manufacturing and distributing methamphetamine. Their story begins in 1987, when Harris and Townsend began their manufacturing activities in Marshall, Texas. Although Harris then lived in Houston, he would travel to Marshall, "cook" up a batch of methamphetamine with Townsend, and then deliver the finished product to his Houston distributor, Rick Boettcher. Local authorities eventually became suspicious of the goings-on there, executing a search warrant and seizing the tools of their trade in mid-1988.

Near the end of that same year, appellant Wendell Shackleford and his brother Eric, former associates of Harris, purchased an abandoned rendering plant and an attached residence near Hamilton, Texas. Wendell and his wife adopted the residence as their home, establishing a methamphetamine lab in the old plant. Although Eric obtained some of the manufacturing supplies on his own, Harris also provided needed chemicals, traveling between Hamilton and Houston with his companion-for-hire, Rebecca Burnette. On a few occasions, Harris, Burnette, and Wendell met at a motel, where the chemicals were delivered. On other occasions, Harris and Burnette met Boettcher at the motel, exchanging the Shacklefords' finished product for money. Pursuant to Harris's instructions, Burnette would then send money orders to Eric in payment for the drugs.

Occasionally, Harris and Burnette met Townsend in Marshall, where undeterred by the earlier raid, he apparently continued to deal in precursor chemicals. On at least one occasion, Burnette and Harris met Townsend in Hamilton, where the chemicals were exchanged for a certified check made payable to Townsend. Another such delivery was waylaid when Townsend was stopped for a traffic violation, and found to be in possession of precursor chemicals and drugs.

By mid-1989, the activities at the old rendering plant had aroused the suspicions of the Hamilton constabulary. Agents conducted surveillance, and obtained and executed a search warrant. Their efforts were fruitful: the abandoned plant indeed concealed a full-scale methamphetamine laboratory. The search uncovered a large amount of glassware and equipment, some of which bore the fingerprints of Harris and the Shacklefords, mounds of chemical precursors, and some methamphetamine product. The agents also uncovered the usual array of packaging supplies, as well as a copy of "The Anarchist's Cookbook," a handy reference source providing not only the recipes for illicit drugs, but also useful tips on weapons and evading surveillance.

Coincidentally, the agents noted Eric making frequent trips to two trailers in Colorado City, Texas, and soon confirmed that the trailers were registered in the name of his company. Pursuant to a search warrant, the agents discovered yet another methamphetamine laboratory, this one in its embryonic stage, its glassware, equipment, and chemicals not yet in use.

The manufacturing scheme began to unravel with the arrest of Eric in mid-1989. Soon thereafter, agents raided Harris's Houston home, where they discovered drug paraphernalia, chemical price lists, and a photo album containing pictures of Harris and Townsend engaged in their manufacturing activities. When Townsend's house in Marshall was searched, the agents found, in a closet reeking of phenylacetic acid, methamphetamine product, manufacturing paraphernalia, and lists of chemical precursors and suppliers. The agents also found various forms of fake identification, including phony birth certificates, military discharge papers, and blank driver's license applications. ¹ The agents also discovered numerous receipts, including one from a $700 money order payable to Harris dated September 13, 1988.

The scheme finally came to a close in late 1989, when Wendell Shackleford was arrested, armed with a .45 caliber handgun. A search of his residence also produced methamphetamine product, other weapons, and ammunition.

The appellants were indicted on one count of conspiracy to manufacture methamphetamine, a violation of 21 U.S.C. Sec. 846. ² Wendell Shackleford was also indicted on one count of using and carrying a weapon during a drug conspiracy, a violation of 18 U.S.C. 924(c)(1), and one count of being a felon in possession of a firearm, a violation of 18 U.S.C. Sec. 922(g)(1). ³ From a verdict convicting them on those charges, the appellants take this appeal.

I.

Each appellant filed a separate brief, noticing different points of error from those of his co-appellants. Later, our court granted the appellants' motions to adopt the arguments raised by their co-appellants. See Federal Rule of Appellate Procedure 28(i). This practice is permitted in the interest of judicial efficiency when the arguments to be adopted are equally applicable to the adopting co-appellants. However, when one appellant raises a challenge to the sufficiency of the evidence supporting his conviction, we find that a motion to adopt that appellant's argument, without more, is insufficient to raise that point of error as to the adopting co-appellant. Logically, the same reasoning applies to other fact-specific contentions, such as minimal participant status or criminal history ratings under the guidelines. Accordingly, we consider the merits of those contentions only as to the party raising them.

Sufficiency of the Evidence

Townsend contends that the bulk of the evidence adduced at trial tends to prove his involvement in activities not charged in the indictment, such as those occurring in Marshall in 1987. Accordingly, he submits that there is insufficient evidence to support his conviction. We disagree.

In reviewing a challenge to the sufficiency of the evidence, this court must determine whether "a rational trier of fact could have found that the evidence established guilt beyond a reasonable doubt." United States v. Carrasco, 830 F.2d 41, 43 (5th Cir.1987). It is not necessary that the evidence exclude every hypothesis of innocence, and "a jury is free to choose among reasonable constructions of the evidence." United States v. Bell, 678 F.2d 547, 549 (5th Cir.Unit B 1982). We view all inferences and credibility choices in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942).

In a conspiracy prosecution, the government must prove beyond a reasonable doubt (1) the existence of an agreement between two or more persons to violate the narcotics laws, (2) that each alleged conspirator knew of the conspiracy and intended to join it, and (3) that each alleged conspirator did participate in the conspiracy. United States v. Magee, 821 F.2d 234, 238-39 (5th Cir.1987). Proof of any element may be by circumstantial evidence, and "a common purpose and plan may be inferred from the development of 'a collocation of circumstances'." United States v. Marx, 635 F.2d 436, 439 (5th Cir.1981) (citations omitted).

There is ample evidence to support the conclusion that Townsend and Harris cooperated in drug manufacturing activities in Marshall in 1987. Although that conduct was not charged in the indictment, evidence of a pre-existing relationship between parties is relevant in determining whether they were engaged in a conspiracy. United States v. Ruiz, 860 F.2d 615, 618 (5th Cir.1988). Burnette testified that she and Harris took delivery of the precursor chemicals from Townsend, and delivered them to the Hamilton laboratory. Such a transaction is verified by the money order receipt found in Townsend's residence, the date of which corresponds with the Hamilton operation. Burnette also testified that Townsend made at least one delivery of chemicals to Hamilton, supporting the inference that he knew the location of the laboratory. Even though Townsend's destination the night he was stopped by police was not conclusively established by the evidence, the jury was entitled to infer, from Townsend's prior activites, that he was intending to rendezvous with Harris and Burnette.

Although Eric Shackleford conceded that he did not recognize Townsend when he saw him in jail, that testimony does not affect our appraisal. As our court has noted, "a conviction will not be reversed for lack of evidence that the defendant was acquainted with, or knew all the...