U.S. v. Mann
| Decision Date | 19 November 2004 |
| Docket Number | No. 03-30432.,No. 03-30435.,03-30432.,03-30435. |
| Citation | 389 F.3d 869 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Tomi MANN, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. James F. Pollender, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
David A. Duke, Law Office of David A. Duke, Billings, MT, for the appellant.
Jeffrey P. Singdahlsen, U.S. Department of Justice, Washington, DC, for the appellee.
Appeal from the United States District Court for the District of Montana; Richard F. Cebull, District Judge, Presiding. D.C. Nos. CR-02-00122-1-RFC, CR-02-00122-RFC.
Before: SCHROEDER, Chief Judge, TASHIMA, and BYBEE, Circuit Judges.
Following a jury trial, Tomi Mann and James F. Pollender ("Appellants"), were each convicted of three counts of conspiring to manufacture methamphetamine, possessing with intent to distribute methamphetamine, and possessing listed chemicals with intent to manufacture methamphetamine. 21 U.S.C. §§ 841(a)(1), 841(c), 846. Appellants were each convicted of possessing an unregistered "pen gun" in violation of 26 U.S.C. §§ 5861(d) and 5845(e), and Pollender was convicted of possessing two firearms while being a convicted felon, in violation of 18 U.S.C. § 922(g)(1). In addition, Appellants were convicted of two counts of possessing a firearm in furtherance of their drug trafficking conspiracy, in violation of 18 U.S.C. § 924(c).
Pollender appeals the district court's denial of his timely motion to suppress evidence seized during a search of his rural campsite, alleging that, despite his repeated requests, the searching officers failed to present him with a copy of the search warrant at the scene. In the alternative, he argues that the evidence should be suppressed because the search warrant violated the Fourth Amendment's particularity requirement. Both Mann and Pollender appeal the district court's denial of their motions for acquittal on the ground that the evidence introduced at trial was insufficient to support a conviction on the charge that they each possessed two firearms in furtherance of their drug trafficking conspiracy.
Because we conclude that insufficient evidence was introduced at trial to demonstrate that Appellants' firearm possession was "in furtherance of" their drug trafficking crime, we reverse Appellants' conviction under § 924(c). We otherwise affirm.
On August 8, 2002, officers in the Sweet Grass County, Montana, Sheriff's Office received a tip that an individual driving an orange pickup truck with Washington plates was selling and possibly manufacturing methamphetamine in the area. Sheriff's Deputy Michael Rodriguez and Montana Highway Patrol Officer James Moody located the truck at a rural campsite on United States Forest Service ("USFS") land. The officers determined that the truck belonged to James Francis Pollender, an individual who had previously been arrested for possession, delivery, and manufacture of drugs in Washington.
After contacting USFS Agent John Walker to discuss the information he had gathered, Rodriguez applied for and was granted a search warrant for the campsite, "including but not limited to any tents, camping equipment, backpacks, etc.; and one orange and red 1997 Ford Pickup ... and the contents of said vehicle including body, trunk, engine and any purses, backpacks, briefcases, bags or other containers located in the vehicle, and any locked compartment located in the back of the vehicle." The items to be searched for and seized were described as "any dangerous drugs and drug paraphernalia, or any other items which are contraband/evidence/fruits of the crime/instrumentalities or articles used in the commission of the crimes." The location was described as the "campground up Cherry Creek Road on the West Fork of the Lower Deer Creek, T2S, R14E, NW 1/4 of Section 21, Sweet Grass County, Montana, occupied by James Francis Pollender."
A Montana District Court Judge signed the search warrant, and a group of officers, both state and federal, traveled to the campsite to execute the search. At approximately 8:15 that evening the officers arrived at the campsite, but Pollender's truck was missing. After determining that a methamphetamine lab was present, the officers donned Air Purifying Respirators and HAZMAT suits, ventilated the tents, and entered to begin the search. One tent was determined to be a "sleeping tent" and the other a "cooking tent," the latter containing most of the chemicals needed in manufacture.
Approximately 30-45 minutes after the officers had begun executing the warrant, Pollender and Mann arrived at the campsite. The two were immediately placed under arrest, searched, dressed in HAZMAT suits, and transported to the Sweet Grass County Sheriff's Office for questioning and processing. Neither Pollender nor Mann was provided a copy of the search warrant at this time.
Deputy Rodriguez and Detective Steve Crawford remained on the scene to continue the search. The officers searched Pollender's pickup truck, where they found a Smith & Wesson .40 caliber semi-automatic pistol, a loaded "pen gun," ammunition, 30 pseudoephedrine pills, and other drug paraphernalia. Components needed for the manufacture of methamphetamine and various other incriminating items were uncovered in the tents. The officers did not finish the search until 3:30 A.M. on Saturday, September 21, 2002.
On October 17, 2002, a federal grand jury returned an indictment charging the pair with multiple crimes, including conspiring to manufacture methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846; possessing with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1); possessing listed chemicals, namely, acetone and toluene, with intent to manufacture methamphetamine in violation of 21 U.S.C. § 841(c); possessing a Smith & Wesson .40 caliber semi-automatic pistol in furtherance of the drug trafficking crime charged in count 1, in violation of 18 U.S.C. § 924(c); possessing a "pen gun" in furtherance of the drug trafficking crime charged in count 1, in violation of 18 U.S.C. § 924(c); and possessing an unregistered "pen gun" in violation of 26 U.S.C. §§ 5861(d) and 5845(e).
Pollender moved to suppress evidence seized during the search of the campsite alleging insufficient particularity to support the warrant, in part because the warrant mistakenly referred to the location of the campsite as "Lower Deer Creek" rather than "Upper Deer Creek." He also alleged that the officers violated what was then Federal Rule of Criminal Procedure 41(d) because they did not provide him a copy of the search warrant prior to commencing the search or immediately upon his arrival at the campsite.
The district court conducted an evidentiary hearing on the matter in which some contradictory evidence was introduced. Three officers testified that Pollender never requested to see a copy of the warrant, but Pollender testified that he repeatedly made such a request and was refused. Pollender also alleged that he was not given a copy of the search warrant until he appeared in court on September 24, 2002, three days after the search. Helena Patrol Captain, John W. Allendorf contradicted this testimony, stating that he personally served defendants with the search warrant shortly before their arraignment on September 21.
Considering the evidence, the district court concluded that the warrant described the place to be searched and the items to be seized with sufficient particularity, and that, despite the officers' failure to serve Appellants with a copy of the warrant at the scene, Rule 41(d) did not require suppression of the evidence seized. According to the court, when officers arrived at the scene the defendant was not present. As soon as he arrived, he was arrested and immediately transported from the area because it was deemed hazardous. Pollender was advised of the search warrant and the fact it was being executed around midnight on the evening of his arrest. He received a copy of the search warrant the next morning. The court concluded that the officers had not deliberately disregarded the requirements of Rule 41(d) or prejudiced Pollender's rights because, inter alia, exigency mandated Pollender's immediate removal from the search site. Accordingly, the court denied Pollender's motion to suppress.
At the close of all of the evidence, Pollender and Mann unsuccessfully moved for judgments of acquittal on the ground that the evidence introduced at trial was insufficient to support their convictions under 18 U.S.C. § 924(c). The jury convicted Appellants of six drug-related counts, including two counts of possessing a firearm in furtherance of their drug trafficking conspiracy in violation of § 924(c). These appeals followed.
While we review de novo the district court's denial of Pollender's motion to suppress, the factual findings supporting that denial are reviewed for clear error. See United States v. Peterson, 353 F.3d 1045, 1048 (9th Cir.2003). The district court's decision that the warrant meets the particularity requirements of the Fourth Amendment, as well as Appellants' challenge to the sufficiency of the evidence supporting their § 924(c) convictions, is reviewed de novo. See United States v. Reeves, 210 F.3d 1041, 1046 (9th Cir.2000) (Fourth Amendment particularity); United States v. Carranza, 289 F.3d 634, 641 (9th Cir.2002) (sufficiency of evidence).
In this appeal, Pollender argues that all evidence seized during the search of his campsite should be suppressed because the service and execution of the warrant violated the terms of former Rule 41(d) as interpreted by this court in United States v. Gantt, 194 F.3d 987 (9th Cir.1999). In the alternative, he contends that the evidence should be suppressed because the warrant was facially flawed in...
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