U.S. v. Hester
| Decision Date | 30 March 1998 |
| Docket Number | No. 97-2896.,No. 97-2518.,No. 97-2519.,97-2518.,97-2519.,97-2896. |
| Citation | 140 F.3d 753 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. William Henry HESTER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Billie Dean SULLIVAN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Thomas ALLEN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Shane P. Cantin, Springfield, MO, argued, for Appellant Hester.
Bruce H. Galloway, Springfield, MO, argued, for Appellant Sullivan.
Robert D. Lewis, Springfield, MO, argued, for Appellant Allen.
Rose A. Barber, Asst. U.S. Atty., Springfield, MO, argued, for Appellee.
Before BOWMAN, FLOYD R. GIBSON, and HANSEN, Circuit Judges.
William Henry Hester, Billie Dean Sullivan, and Thomas Allen, along with several others, were charged with participating in a conspiracy to manufacture and to distribute methamphetamine. In this direct criminal appeal, Hester, Sullivan, and Allen challenge their convictions and sentences, asserting that the district court1 committed several errors. We affirm.
Viewing the evidence in the light most favorable to the verdicts, a reasonable jury could have found the following facts. The conspiracy at issue in this case began when Randy Shultz and Lorinda Mason2 agreed to manufacture their own methamphetamine because they were methamphetamine users having difficulty obtaining it from other sources. They obtained a recipe and collected the necessary supplies, including ether gathered from cans of starting fluid, sodium metal, and Sudafed pills. In April 1995, after the supplies had been gathered, defendant Billie Sullivan came to the residence to teach Shultz and Mason how to manufacture methamphetamine. On that first occasion, they manufactured approximately an ounce or two of methamphetamine. Mason took pictures of Shultz and Sullivan proudly displaying their newly manufactured methamphetamine, and then they distributed it among themselves. Mason and Shultz kept half, and Sullivan took the remaining half with him when he left. Between April and June 1995, Sullivan helped manufacture methamphetamine with Shultz four or five times. Whenever they manufactured it together, Sullivan kept half of what was produced.
On June 28, 1995, law enforcement officers executed an arrest warrant for Shultz at his residence. While the officers were inside the home, they conducted a security sweep and discovered the methamphetamine laboratory. They obtained a search warrant for the property and continued investigating the activities on the property. The methamphetamine activities on the property slowed down immediately, but the operation continued. A few days later, Shultz and defendant Thomas Allen began manufacturing methamphetamine again at Shultz's residence. Mason moved out of the property for a brief time but moved back in August 1995.
Also in August 1995, Allen and his four children moved into the Shultz residence and Mason testified that she, Shultz, and Allen agreed to use Allen's four children as a front for the methamphetamine operation to make it appear that Shultz no longer lived there. They moved the manufacturing lab out to the barn at this point. Allen helped cook the methamphetamine on occasion and also supplied Shultz with sodium metal, starting fluid, and other chemicals. Sodium metal was one of the main ingredients in these early operations, but it was difficult to obtain.
In the Fall of 1995, Shultz began paying James Carter to supply some needed ingredients. Carter was a methamphetamine user, and by May or June of 1996, he was also helping Shultz cook the methamphetamine. Another supplier was John Gray. Mason testified that she believed John Gray was obtaining sodium metal from defendant William Henry Hester, because she once saw Gray obtain sodium metal at a house where she later visited Hester and his wife.
Hester testified that he was a methamphetamine addict, that he had once traded sodium metal to Gray in exchange for methamphetamine, and that Gray introduced him to Shultz in April 1995. In July 1995, Hester went to work for Shultz on the farm in exchange for a little money and all the beer and methamphetamine he wanted. Mason testified that Hester also participated in the manufacturing operation. Hester developed a method for quick-drying the methamphetamine. Hester moved onto the Schultz farm with his wife and two children in November or December 1995. While they were living there, Mason took photographs of Hester and his family members, including his two small children, in the presence of large platters of methamphetamine.
In January 1996, Shultz, Mason, and Sullivan discovered a new manufacturing method, using lithium metal obtained from lithium batteries instead of the difficult to obtain sodium metal they had been using. Mason testified that they all thought this new method would enable them to make a lot of money. After this discovery, they were able to make methamphetamine once or twice a week. Hester testified he was aware that many people were coming and going at the Shultz farm to purchase methamphetamine.
Hester had a set of the conspirators' recipes, but he did not remain active in the cooking process. Instead, he became the look-out man and provided security for the operation. While the cooks were manufacturing methamphetamine, Hester would scan police radios to detect police activity and watch for people coming onto the property with the aid of binoculars and night vision equipment. Shultz's sister, Cheri, who distributed methamphetamine obtained from her brother, said she observed Hester acting as the lookout man for the methamphetamine operation.
Gary Vest was a methamphetamine user supplied by his half-sister, Patricia Bristol. Shultz was Bristol's source of methamphetamine. Vest began participating in the conspiracy by obtaining supplies, and he once accompanied Hester and Shultz on a delivery of methamphetamine to someone at a garage in Springfield, Missouri. Vest once experienced Hester acting as the security for the operation. On that occasion, Hester threatened Vest with a gun when he thought Vest was taking methamphetamine from Shultz's bedroom without permission.
Hester admitted that he was somewhat of a lookout person. He said he entered this role because he feared someone might try to take his children and use them in an effort to get at the methamphetamine. Hester maintained his only interest as a lookout was to protect his family. He asserted he was a mere user and not part of the conspiracy to distribute or to manufacture methamphetamine.
In March 1996, officers arrested Shultz and Mason and executed additional search warrants. They seized photographs of the defendants proudly displaying the methamphetamine they had manufactured. The photographs were taken at Shultz's residence and pictured Shultz, Sullivan, and Hester with platters full of methamphetamine. Hester's two small children are also shown in some of the pictures along with weapons and methamphetamine. Officers also seized ingredients and recipes for making methamphetamine, a notebook describing the methamphetamine production processes, a night vision device, and a list of police radio frequencies, among other things.
Count one of the third superseding indictment charges Shultz, Mason, Hester and his wife, Allen, Sullivan, Bristol, Vest, and Carter with engaging in a conspiracy to manufacture and to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846 (1994). The remaining four counts of the indictment were single counts against Shultz, Hester's wife, and Carter, charging them with attempting to manufacture methamphetamine. Prior to trial, Shultz, Mason, Bristol, and Vest pleaded guilty to count one. Hester's wife pleaded guilty to a misdemeanor charge of possession of a controlled substance.
Hester, Sullivan, Allen, and Carter proceeded to trial. The jury convicted Hester and Sullivan of count I but could not reach a verdict as to Allen and Carter. Subsequently, Carter pleaded guilty to a different charge (use of a communication facility in the commission of a drug trafficking offense). Following a retrial of Allen, a jury convicted him of the count one conspiracy. The district court sentenced Hester to a 360-month term of imprisonment, sentenced Sullivan to a 121-month term of imprisonment, and sentenced Allen to a 188-month term of imprisonment; each sentence to be followed by a five-year period of supervised release.
In this appeal, Hester contends that the district court erred by refusing to give an instruction on his theory of defense, by making a prejudicial statement to the jury, and by allowing certain photographs to be admitted depicting his minor children in the presence of illegal substances. Sullivan argues that the district court erred by failing to grant his motion for judgment of acquittal because a variance existed between the superseding indictment and the proof, and because the evidence at trial failed to demonstrate that Sullivan agreed to the common purpose of the single conspiracy. Finally, Allen challenges his sentence, arguing that the district court failed to rule on his objections to the presentence report.
Hester first contends that the district court erred by refusing to give an instruction on his requested theory of defense. Hester's theory of defense was that he was a mere user of methamphetamine, not a member of the conspiracy to manufacture or to distribute. He proffered Instruction F, which would have instructed the jury that a mere buyer-seller relationship does not establish a conspiracy. The district court rejected this instruction, and Hester contends that this precluded him from proving his defense theory.
We review the adequacy of instructions by considering them as a whole, and we grant the district court broad discretion in...
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