U.S. v. Jones

• Decision Date: 04 September 1997
• Docket Number: No. 96-5805,96-5805
• Citation: 124 F.3d 781
• Parties: 47 Fed. R. Evid. Serv. 1032 UNITED STATES of America, Plaintiff-Appellee, v. Dallas Wayne JONES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 781

124 F.3d 781

47 Fed. R. Evid. Serv. 1032

UNITED STATES of America, Plaintiff-Appellee, v. Dallas Wayne JONES, Defendant-Appellant.

No. 96-5805.

United States Court of Appeals, Sixth Circuit.

Argued Aug. 5, 1997.

Decided Sept. 4, 1997.

Terry M. Cushing, Asst. U.S. Attorney (briefed), Steven S. Reed, Asst. U.S. Attorney (argued and briefed), Office of the U.S. Attorney, Louisville, KY, for Plaintiff-Appellee.

Douglas E. Robertson (argued and briefed), Bowling Green, KY, for Defendant-Appellant.

Before: KENNEDY, CONTIE, and COLE, Circuit Judges.

CONTIE, Circuit Judge.

Defendant-appellant, Dallas Wayne Jones, appeals his conviction and sentence for manufacturing marijuana in violation of 21 U.S.C. § 841(a)(1) and use of a destructive device during a drug trafficking crime in violation of 18 U.S.C. § 924(c).

I.

On September 22, 1993, a government strike force was working on a marijuana eradication detail by conducting routine helicopter flights around Tompkinsville, Kentucky. They observed a number of marijuana plants being grown behind a residence. After landing near defendant's home, the officers discovered marijuana plants in a cedar thicket. Five blue plastic laundry baskets lined with plastic bags and filled with potting soil were being used to grow some of the plants, while others were grown in five-gallon buckets or were planted in the ground. Also found in the patch were two one-gallon milk jugs painted brown and green.

After seeing one marijuana plant in the backyard of the residence, officers noticed six one-gallon milk jugs painted brown and green by a water faucet in the back of the house. At this time, two Kentucky state troopers talked to defendant, who stated that he knew nothing about the marijuana growing behind his home or in his backyard. He stated that his fifteen year old son, who lived with his mother in Glasgow, Kentucky, might be growing it. ¹

After determining defendant would not provide any assistance, the officers discovered more marijuana behind the residence, which at that time brought the total number of plants near the home to 23. The officers reboarded the aircraft and took off from the field adjacent to defendant's home. They then spotted more marijuana growing in the woods around a nearby field and landed again.

After entering one of the smaller patches of marijuana and cutting approximately eight plants, one of the officers noticed a long, round object, approximately 16 to 18 inches long, taped to a small tree at the edge of the patch. It was covered with plastic and painted green, with black electrical tape affixed to the tree and two green wires coming from the bottom of the object, running into the stalk of a marijuana plant. The officer notified the Kentucky State Police bomb squad. The area was secured, but due to the impending darkness, the officers decided to wait until daylight of the following day to attempt to disarm the device.

During the morning hours of September 23, 1993, a demolitions expert disarmed the device. It was discovered that the item was an explosive device made from a car muffler, black powder, body filler, a brake light switch, and a car battery. After dismantling the bomb, the officer found two pink invoices with defendant's name on them inside the metal tubing.

The officers obtained a state search warrant for defendant's residence and conducted a search the next day. They discovered the following items in defendant's home, garage, and in junk vehicles on the property. An alarm-type device was discovered affixed to the door of the garage. This device was almost identical to the bomb found in the marijuana patch, with the exception of the explosive mechanism, which was replaced by a car horn to let defendant know if anyone opened the garage door. A small quantity of marijuana was found in the residence, and marijuana residue was in the trunk of two of his cars.

Inside defendant's garage, the officers found the following items consistent with the bomb components: (1) pink invoices with defendant's name and address, which were identical to the invoices in the bomb; (2) an empty Pyrodex powder can; (3) a gasket set with one missing gasket, which matched the gasket in the bomb; (4) automobile body putty, which matched the body putty in the bomb; (5) a battery, which was connected to a garage alarm system designed to function like the bomb, except that a horn was substituted for the explosive device; (6) a switch, which was identical to the switch in the bomb; (7) an empty container for green multi-stranded wire; and (8) silicone, which matched the silicone in the bomb. Outside the garage, the officers found ten pieces of pipe that had been sealed at each end with duct tape, consistent with pipe bombs.

On September 5, 1995, a federal grand jury for the Western District of Kentucky returned a two-count indictment charging defendant with manufacturing marijuana in 1993 in violation of 21 U.S.C. § 841(a) and using a bomb during and while manufacturing marijuana in violation of 18 U.S.C. § 924(c). When arresting defendant in 1995, the officers found more marijuana on or near his premises, but defendant was not charged with manufacturing the 15 marijuana plants found in 1995.

On November 7, 1995, defendant appeared initially in U.S. District Court and entered a plea of guilty to Count 2 (bomb count), pursuant to an oral Rule 11 plea agreement. However, defendant was later allowed to withdraw his guilty plea. On January 31, 1996, following a jury trial, defendant was found guilty by the federal jury on both counts of the indictment. The district court sentenced defendant to 60 months' imprisonment on Count 1 (manufacturing marijuana) and to 360 months' imprisonment on Count 2 (using a bomb). The court ordered the sentences to run consecutively for a total sentence of 420 months.

Defendant timely filed an appeal. On appeal, defendant raises three issues: (1) whether there was sufficient evidence to sustain his conviction; (2) whether the district court erroneously excluded from evidence an allegedly exculpatory letter written by his son pursuant to Fed.R.Evid. 804(b); and (3) whether the district court erroneously allowed the jury to watch a video of an explosion created by a replica of the bomb found in the marijuana patch.

II.

Defendant argues that the United States presented insufficient evidence to prove his guilt on the marijuana and bomb charges. Defendant contends that the only proof presented connecting him to the crime was that the destructive device was probably made in his garage. Defendant argues that because the theory of the defense was that defendant's son was the culprit, the proof that the destructive device was made in defendant's garage was as consistent with innocence as with guilt, and therefore defendant could not be convicted. We do not agree.

We address a sufficiency of the evidence challenge under the following standard of review: "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Martin, 897 F.2d 1368, 1373 (6th Cir.1990). Circumstantial evidence, standing alone, can sustain a guilty verdict, and the circumstantial evidence need not remove every reasonable hypothesis except that of guilt. United States v. Stone, 748 F.2d 361, 362 (6th Cir.1984).

In the present case, we believe the evidence was sufficient for a jury to return a verdict of guilty on both counts. The marijuana was grown in the field next to defendant's residence, and there was a trail in the marijuana field which led directly to his backyard. There were plastic one-gallon milk jugs, painted brown and green, located both in the marijuana field and at the rear of defendant's house. The officers found a marijuana plant growing in the middle of defendant's backyard, marijuana in his kitchen, and marijuana residue in the trunk of two of his cars. We believe this is sufficient circumstantial evidence to indicate that defendant grew the marijuana.

The evidence that indicated defendant was the maker of the bomb was as follows. The bomb, which was located in the marijuana field next to defendant's house and automotive garage, was made from an automobile tail pipe. The bomb contained pink invoices with defendant's name and address, which were identical to pink invoices discovered in his garage. The bomb contained Pyrodex powder in the explosive, and there was an empty Pyrodex container in his garage. The bomb was connected with green multi-stranded wire. Inside defendant's garage, the officers found an empty container for green multi-stranded wire. The automobile body putty used to construct the bomb matched that found in defendant's garage. Also, the switch in the bomb was identical to one in the garage, as was the silicone. The gasket in the bomb matched a gasket missing from a gasket set found in defendant's garage. The bomb was constructed to operate identically to the alarm system in defendant's garage, except that in the garage, a horn was substituted for the explosive device. Finally, outside defendant's garage, the officers found ten pieces of pipe, which had been sealed on each end with duct tape, consistent with pipe bombs.

At trial, the jury heard defendant testify that he was innocent and that his son was the person guilty of growing the marijuana and making the bomb. Evidently, the jury did not find defendant to be credible. Issues of credibility are for the jury to determine. Boutros v. Canton Regional Transit Authority, 997 F.2d 198, 202 (6th Cir.1993); United States v. Evans, 883 F.2d 496, 501 (6th Cir.1989). To conclude, the jury had sufficient evidence to find defendant guilty of manufacturing marijuana and using a bomb in relation to this offense. The district court is affirmed on this...