U.S. v. Laster

• Decision Date: 26 April 2001
• Docket Number: 6247,Nos. 99-6244,s. 99-6244
• Citation: 258 F.3d 525
• Parties: (6th Cir. 2001) United States of America, Plaintiff-Appellee, v. James M. Laster (99-6244) and Jerry Lear (99-6247), Defendants-Appellants. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 525

258 F.3d 525 (6th Cir. 2001)

United States of America, Plaintiff-Appellee, v. James M. Laster (99-6244) and Jerry Lear (99-6247), Defendants-Appellants.

Nos. 99-6244, 6247

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: April 26, 2001

Decided and Filed: July 26, 2001

Appeal from the United States District Court for the Western District of Kentucky at Owensboro, No. 98-00001--Joseph H. McKinley, Jr., District Judge. [Copyrighted Material Omitted] Terry M. Cushing, Marisa J. Ford, Mark L. Miller, ASSISTANT UNITED STATES ATTORNEY, Louisville, Kentucky, for Appellee.

James Laster, Federal Medical Center Cardinal Unit, Lexington, KY, Gerald L. Gulley, Jr., BAKER, GULLEY & OLDHAM, Knoxville, Tennessee, Allen W. Holbrook, SULLIVAN, MOUNTJOY, STAINBACK & MILLER, Owensboro, Kentucky, for Appellants.

Before: SILER and MOORE, Circuit Judges; STAGG, District Judge.^*

SILER, J., delivered the opinion of the court, in which STAGG, D. J., joined. MOORE, J. (pp. 532-35), delivered a separate dissenting opinion.

OPINION

SILER, Circuit Judge.

Defendants Jerry Lear and James M. Laster appeal their convictions and sentences for drug offenses. This published opinion sets forth the court's ruling as to defendants' claims that the district court erroneously admitted records involving the purchase and attempted purchase of hydriodic acid, and the impact of Apprendi v. New Jersey, 530 U.S. 466 (2000), on the calculation of their respective sentences. Our decision concerning defendants' remaining appellate issues can be found in the unpublished opinion for these cases. We affirm.

I. BACKGROUND

In 1993 James Acquisto, a detective for a state drug task force, received information from Universal Testing Incorporated ("UTI"), that one of its employees, Laster, had ordered hydriodic acid, a component of methamphetamine, from Wilson Oil Company using the UTI company name without its permission.¹

After reviewing the Wilson Oil Company documents confirming these purchases, Acquisto contacted Drug Enforcement Special Agent Gary Tennant. Together they approached Laster on July 8, 1993. Laster stated that approximately four or five months prior, he was contacted by an "unnamed older man" seeking certain chemicals including hydriodic acid, red phosphorous, and sulfuric acids through UTI. Laster stated he was acting under the assumption that he would be paid for securing these chemicals which he believed were to be used to make methamphetamine.

In a second statement provided on July 20, 1993, Laster admitted to making three trips with Lear to Illinois to pick up hydriodic acid and receiving $300 per bottle for it. On July 21, 1993, Lear gave a statement to Acquisto and Tennant corroborating these trips with Laster. He also admitted traveling alone to Illinois on two other occasions to pick up bottles of hydriodic acid. According to Lear, all of these chemicals were picked up for the "older man." Laster's admissions were consistent with the information contained in the Wilson Oil Company purchase documents admitted as exhibits at the 1998 trial.

A meeting was held in September 1993 between government agents, Lear, Laster, and their respective counsel whereby the defendants agreed to assist the government in its investigation of methamphetamine manufacturing in Kentucky.

In August 1994, Officer Richard Derks of the Sturgis City Police Department stopped Lear driving a truck in a reckless manner. Laster exited the passenger side of the vehicle carrying a container and placed it on the bed of the truck. A 9mm semi-automatic pistol was removed from Lear's waistband. An additional magazine for the pistol was found in the cab of the truck along with a .32 caliber semi-automatic pistol. Draino, coffee filters, plastic tubing, Mason jars, towels, lye, an aspiration mask, a funnel, and three plaster-encased glass jars containing liquid were found in the containers in the truck bed. The liquid in the jars was later determined to be 58.2 grams of pure D-methamphetamine. This liquid also contained red phosphorous and iodine, which are consistent with the use of hydriodic acid to manufacture methamphetamine.

A bag inside the cab of the truck contained four other bags of methamphetamine weighing a total of 7.44 grams, razors, razor blades, a vial, a spoon, a lighter, pH strips, corners of plastic bags, and rubber bands. Also seized was a notebook on the dash of the truck which contained, in addition to other non-incriminating pages, references to gram quantities next to dollar figures and initials, as well as fourteen entries of drug sales totaling $2,000. Motions to suppress some of the items taken from Lear's vehicle were denied by the district court.

The defendants were tried before a jury on the following charges: Count 1, conspiracy to manufacture methamphetamine from March 1, 1993 through July 30, 1993 in violation of 21 U.S.C. § 846; Counts 2,3,4, and 5, aiding and abetting in the attempt to knowingly and intentionally manufacture methamphetamine on March 24, 1993, April 14, 1993, April 30, 1993, and May 14, 1993, respectively, in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2; Count 6, conspiring on August 21, 1994 to knowingly and intentionally manufacture methamphetamine in violation of 21 U.S.C. § 846; Count 7, aiding and abetting each other on August 21, 1994 in knowingly and intentionally possessing methamphetamine with the intent to distribute in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; Count 8, aiding and abetting each other on August 21, 1994 in knowingly and intentionally manufacturing methamphetamine in violation of 21 U.S.C. § 841(a) (1) and 18 U.S.C. § 2; and Count 9, aiding and abetting each other on August 21, 1994 in knowingly carrying a firearm during and in relation to drug trafficking crimes in violation of 18 U.S.C. §§ 2 and 924(c)(1).

Lear was convicted on Counts 1 through 5, and 7 through 9, and received a sentence of 211 months imprisonment. Laster was convicted on Counts 1, 3, 4, and 5, and received a sentence of 151 months imprisonment.

II. DISCUSSION

A. The Wilson Oil Company records

The defendants argue that the district court improperly admitted purchase records from Wilson Oil Company under the business records exception of Fed. R. Evid. 803(6). The court reviews de novo the district court's conclusion that this proffered evidence was not inadmissible hearsay. See United States v. Dakota 188 F.3d 663, 669 (6th Cir. 1999).

The records from Wilson Oil Company included four invoices dated March 24, 1993, April 14, 1993, April 30, 1993, and May 14, 1993 which respectively reflected the sale on each date of one 500 milliliter bottle of hydriodic acid, except for the May 14, 1993 invoice wherein two bottles were sold in addition to two bottles of sulfuric acid and one plastic barrel. An additional order for six 500 milliliter bottles had been sought by Laster, but was canceled by the supplier to Wilson Oil Company. Also included in these records was the chemical diversion letter signed by Laster which referenced the sale of hydriodic acid to UTI by Wilson Oil Company. The district court held that the Wilson Oil Company records were admissible under either the business records hearsay exception of Fed. R. Evid. 803(6) or the residual exception of Fed. R. Evid. 807. Acquisto was determined to be a qualified witness under Fed. R. Evid. 803(6), and was permitted to lay the foundation upon which the records were admitted.²

The business records exception is available if the evidence to be introduced was (1) "made in the course of a regularly conducted business activity;" (2) "kept in the regular course of [] business;" (3) a result of a "regular practice of the business" to create the documents; and (4) "made by a person with knowledge of the transaction or from information transmitted by a person with knowledge." United States v. Fawaz, 881 F.2d 259, 266 (6th Cir. 1989)(quoting Redken Labs., Inc. v. Levin, 843 F.2d 226, 229 (6th Cir. 1988)).

Defendants attack the admissibility of the records on the grounds that Acquisto was not qualified to admit these records under the business records exception. Acquisto did not examine the books or ledger sheets of Wilson Oil Company, nor did he know whether Wilson had an accountant or bookkeeper. Neither did Acquisto ask Wilson whether these documents were prepared simultaneously with the transactions reflected thereon. Defendants thus argue that Acquisto had no personal knowledge or any familiarity with the record-keeping practices of Wilson Oil Company.

United States v. Hathaway, 798 F.2d 902 (6th Cir. 1986), holds that a foundation for the application of Fed. R. Evid. 803(6) may be laid, in whole or in part, "by the testimony of a government agent or other person outside the organization whose records are sought to be admitted." Id. at 906. The only requirement is that the "witness be familiar with the record keeping system." Id. Other than a few conversations between Acquisto and Wilson, there is no evidence that Acquisto was familiar with the record-keeping system of Wilson Oil Company. Therefore, the evidence was not admissible under Fed. R. Evid. 803(6).

However, the district court did not err in admitting the purchase orders and other related documents under the residual hearsay exception of Fed. R. Evid. 807 as there was "no indication" that the records were not reliable. This rule finds an equally trustworthy statement "not specifically covered by Rule 803 or 804," admissible if it is "material," "more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts," and its admission best serves the interests of justice. Fed. R. Evid. 807.

Although some courts have held that if proffered evidence fails to meet the requirements of the Fed. R. Evid. 803 hearsay exception, it cannot qualify for admission under the residual exception, the court declines to adopt...