U.S. v. Jones, 03-6239.

• Decision Date: 15 April 2005
• Docket Number: No. 03-6239.,03-6239.
• Citation: 403 F.3d 817
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Matthew J. JONES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

403 F.3d 817

UNITED STATES of America, Plaintiff-Appellee, v. Matthew J. JONES, Defendant-Appellant.

No. 03-6239.

United States Court of Appeals, Sixth Circuit.

Argued: March 11, 2005.

Decided and Filed: April 15, 2005.

COPYRIGHT MATERIAL OMITTED

ARGUED: Leslie A. Cory, Leslie A. Cory, Attorney at Law, Chattanooga, Tennessee, for Appellant.Gregg L. Sullivan, Assistant United States Attorney, Chattanooga, Tennessee, for Appellee. ON BRIEF: Leslie A. Cory, Leslie A. Cory, Attorney at Law, Chattanooga, Tennessee, for Appellant. Christopher D. Poole, Assistant United States Attorney, Chattanooga, Tennessee, for Appellee.

Before: MARTIN and GILMAN, Circuit Judges; COHN, District Judge.^*

OPINION

GILMAN, Circuit Judge.

Defendant Matthew J. Jones was charged with one count of conspiracy to manufacture methamphetamine and one count of possessing equipment that could be used in its manufacture. Jones was tried by a jury, which convicted him on both counts. The district court then imposed concurrent sentences, the longest of which was 262 months of imprisonment. Jones now appeals his conviction and sentence. For the reasons set forth below, we AFFIRM the defendant's conviction, but REMAND the case for resentencing in accordance with United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

I. BACKGROUND

A. Factual background

In response to an emergency call about suspected drug manufacturing made by a concerned neighbor of Stanley Bradley in March of 2002, Deputy Kevin Murphy, an officer with the Warren County Sheriff's Department, stopped by Bradley's house to investigate. When he approached the front door and knocked, Deputy Murphy detected a smell that he associated with the production of methamphetamine. He also noticed that Stuart Whitman, an off-duty police officer who lived in the neighborhood, was in his yard trying out a new line on his fishing rod. Deputy Murphy called Officer Whitman over and asked him to keep an eye on the back of Bradley's house to see if anyone tried to exit surreptitiously. The officers monitored the situation for approximately 10 minutes, after which Officer Whitman saw Jones exit through the rear garage door. Officer Whitman called to Deputy Murphy, who went around the back of the house and immediately yelled at Jones to stop and put his hands up.

When Jones held up his hands, Deputy Murphy noticed that they were stained with iodine. This, in Deputy Murphy's opinion, was a sign that Jones had recently been involved in the manufacture of methamphetamine. Deputy Murphy handcuffed Jones and frisked him for weapons. None were found. The men then walked around to the front of the house, whereupon Jones consented to a more thorough search of his person. This search revealed that Jones had several coffee filters in his pants pockets. His suspicions heightened, Deputy Murphy entered the house with Bradley's consent and found numerous items associated with the manufacture of methamphetamine, including 182.5 grams of ephedrine and a jar containing iodine crystals.

B. Procedural background

Jones was subsequently charged with conspiring to manufacture methamphetamine (Count One), in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846, and with possessing equipment that could be used in the manufacture of methamphetamine (Count Three), in violation of 21 U.S.C. §§ 843(a)(6) and 843(d)(2). At trial, the government called Cecil Swoveland as a witness. Swoveland, a longtime acquaintance of Jones, testified that Jones had taught him to how to make methamphetamine in 1999, and that he had seen Jones manufacture methamphetamine several times.

Jones was subsequently found guilty by the jury on both counts. The government, prior to the jury's verdict, had filed a notice of intent to use a state-court conviction of Jones's in order to enhance his punishment pursuant to 21 U.S.C. § 851. Jones responded by contending that this prior conviction was invalid because it was the result of an involuntary guilty plea. The district court rejected Jones's claim and, in reliance on the United States Sentencing Guidelines, sentenced Jones to 262 months of imprisonment on Count One and to 240 months of imprisonment on Count Three, to run concurrently. This timely appeal followed.

II. ANALYSIS

A. Cecil Swoveland's testimony

Jones first argues that the district court improperly admitted the testimony of Swoveland, Jones's longtime acquaintance. He contends that Swoveland's testimony dealt with events that are too old to be of probative value in the present case. Evidentiary rulings such as this "are subject to the abuse of discretion standard of review." United States v. Haywood, 280 F.3d 715, 720 (6th Cir.2002). In general, a "court will find an abuse of discretion where it has a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors." Huey v. Stine, 230 F.3d 226, 228 (6th Cir.2000) (citation and quotation marks omitted).

The government called Swoveland to testify pursuant to Rule 404(b) of the Federal Rules of Evidence. Under this rule,

[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident....

Fed.R.Evid. 404(b). The government argues that admission under Rule 404(b) was appropriate because Swoveland testified that Jones had taught him how to manufacture methamphetamine in 1999. It therefore contends that the testimony is probative in determining Jones's intent on the day he was arrested by Deputy Murphy.

Jones, by contrast, argues that the activities described in Swoveland's testimony are too old to be probative. Although Jones is correct in noting that "prior conduct must be reasonably near in time under the facts of the particular case," United States v. Ismail, 756 F.2d 1253, 1260 (6th Cir.1985), this court has previously concluded that there is "no absolute maximum number of years that may separate a prior act and the offense charged." Id. Cases from this and other circuits have in fact affirmed the use of testimony relating to prior acts dating back much further than three years. In Ismail, for example, the court admitted into evidence testimony relating to events that had happened up to four years earlier. Id.; see also United States v. Murphy, No. 90-6400, 1993 WL 15102, at *3-4 (6th Cir. Jan.26, 1993) (unpublished) (concluding that evidence of prior acts dating back three to four years was admissible under Rule 404(b)); United States v. Rubio-Gonzalez, 674 F.2d 1067, 1075 (5th Cir.1982) (concluding that evidence of prior acts dating back 10 years was admissible under Rule 404(b)); United States v. Foley, 683 F.2d 273, 278 (8th Cir.1982) (concluding that evidence of an 11-year-old conviction was admissible under Rule 404(b)). We therefore find no abuse of discretion in the admission of Swoveland's testimony.

B. The jury instructions

Jones next contends that his conviction should be reversed because the district court failed to charge a lesser-included offense in the jury instructions. In particular, he claims that the elements of the charge of conspiracy to possess equipment and chemicals used to manufacture methamphetamine, 21 U.S.C. § 843(a)(6), are a subset of the elements of Count One, the charge of conspiracy to manufacture methamphetamine, 21 U.S.C. § 841(a)(1), and that the jury should have been instructed on the former as well as the latter.

As an initial matter, the parties disagree as to the appropriate standard of review to be applied regarding this issue. They both agree that, where a proper request is made in the district court, this court will review the denial of that request under the abuse-of-discretion standard. United States v. Ursery, 109 F.3d 1129, 1136 (6th Cir.1997). But where a "defendant neither requested nor submitted a lesser-included-offense instruction, and did not object to the instructions given by the trial judge, the jury instructions are reviewable only for plain error." United States v. Donathan, 65 F.3d 537, 540 (6th Cir.1995).

The government contends that Jones never made a request for an instruction on a lesser-included offense. But the record reflects that Jones did make a written request for the district court to instruct the jury "relative to all possible lesser offenses contained in Count One." In addition, Jones made an oral request at trial that the jury instructions include a charge of conspiracy to possess equipment used in the manufacture of methamphetamine. Because Jones made a specific request for a lesser-included offense, we will review the district court's decision to deny this request under the abuse-of-discretion standard. A court applying this standard "will find an abuse of discretion where it has a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors." Huey, 230 F.3d at 228 (citation and quotation marks omitted).

A defendant is entitled to an instruction on a lesser-included offense if: "(1) a proper request is made; (2) the elements of the lesser offense are identical to part of the elements of the greater offense; (3) the evidence would support a conviction on the lesser offense; and (4) the proof on the element or elements differentiating the two crimes is sufficiently disputed so that a jury could consistently acquit on the greater offense and convict on the lesser." United States v. Colon, 268 F.3d 367, 373 (6th Cir.2001).

In determining whether "there is an identity of elements of a lesser and greater offense ..., courts are to compare the statutory elements of the offenses in question." Id. at 375. A defendant is guilty of conspiring to...