U.S. v. Marsh, s. 88-1300
| Decision Date | 20 February 1990 |
| Docket Number | 88-1306,Nos. 88-1300,s. 88-1300 |
| Citation | 894 F.2d 1035 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Douglas Lauren MARSH and Kathleen Renee Marsh, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Grace C. Shohet, San Francisco, Cal., for defendant-appellant Kathleen Renee Marsh.
Sandra L. Teters, Asst. U.S. Atty., San Francisco, Cal., for plaintiff-appellee.
John M. Runfola, San Francisco, Cal., for defendant-appellant Douglas Lauren Marsh.
Appeal from the United States District Court for the Northern District of California.
Before TANG, SKOPIL, and SCHROEDER, Circuit Judges.
Douglas and Kathleen Marsh appeal their jury convictions of conspiracy to manufacture 4-methylaminorex (2-amino-4-methyl-5-phenyl-2-oxazoline), also known as, "euphoria", a schedule I controlled substance, see 21 C.F.R. Sec. 1308.11(g)(5), in violation of 21 U.S.C. Sec. 846. Douglas also appeals his conviction for attempt to manufacture euphoria. We affirm.
On March 27, 1987, the Gainesville, Florida police executed a warrant for the arrest of Douglas Marsh at his residence. When the police executed the warrant, not only Douglas, but Kathleen Parker, who later married Douglas, was also present. After the arrest the police decided to obtain a search warrant. One officer told Kathleen that the residence would be secured and that she could either stay or leave. Also, that if she left she could take nothing that would be the object of a search. Kathleen nevertheless attempted to leave with a searchable item, a purse. A police officer thwarted this attempt and searched Kathleen's purse. That search uncovered a ledger with information about euphoria transactions.
After the search warrant arrived, officers seized from the residence a letter from Douglas which stated: The officers also seized a small quantity of euphoria.
At the time of seizure, euphoria was not a controlled substance. Therefore, the government could not prosecute Douglas for its possession. Euphoria became a controlled substance on October 15, 1987, however.
On December 10, 1987, Douglas called Pfaltz & Bauer, Inc., a chemical sales business, and placed an order for various chemicals. Douglas asked that the chemicals be shipped to Melody Kronable in Atlanta, Georgia. In early January 1988, a Pfaltz & Bauer employee notified the Drug Enforcement Administration ("DEA") in Atlanta about Douglas' order.
On January 12, 1988, the DEA directed Pfaltz & Bauer to allow DEA agents in Atlanta to intercept the shipment in Atlanta so they could make a "controlled delivery" to Kronable. The agents took the package to Kronable's home and confronted her about her knowledge of the packages. Kronable cooperated with the agents and made a recorded phone call to Douglas, who was then in Oakland, California. In the call, Douglas agreed that the packages could be shipped to him in Oakland.
The DEA then decided to make a controlled delivery of the packages to the Marshes in Oakland. At the time of the delivery, Douglas was not in, and Kathleen signed for the packages.
The delivering DEA agent testified:
Mrs. Marsh asked me why the delivery had taken so long. And I again, in my role as a delivery person, said that, which they were, "you can see it outside the box." And when I said that, she said, "Oh, Melody was supposed to repackage it."
DEA agents later returned with a search warrant. An agent told Kathleen that she was under arrest for attempting to manufacture a controlled substance. Kathleen responded, "We were making Roach-It, and it's not against the law."
Douglas arrived while the agents were executing the search warrant and they arrested him. Douglas also claimed that he was not doing anything illegal and that he was merely conducting research on the manufacture of "Roach-It," an insecticide.
In addition to the chemicals, the agents seized other chemical production materials. The agents also seized a Pfaltz & Bauer purchase order listing the chemicals for manufacturing euphoria and a document entitled "Research for Roach-It," which at trial a DEA forensic chemist characterized as "the entire recipe for euphoria."
The DEA chemist also testified that he was unaware of any commercially available insecticide or roach killer that used a combination of the chemicals seized. The chemist stated that the chemicals seized were for manufacturing euphoria.
The grand jury returned an indictment against the Marshes charging attempt to manufacture and conspiracy to manufacture euphoria in violation of 21 U.S.C. Sec. 846. The government tried the Marshes jointly.
Douglas moved for a continuance on the ground that he had a new witness and needed more time to prepare his defense. The district court denied the motion. Douglas also moved for severance from Kathleen's trial. The district court denied the motion.
At trial, the court admitted the evidence seized from the Florida search and arrest: the drug ledger indicating sales of euphoria, Douglas' letter concerning the manufacture of euphoria, and a small quantity of euphoria.
In his closing argument, Kathleen's attorney referred to Douglas' invocation of his right not to testify:
She told you the truth ... Douglas told her that [the packages of chemicals delivered to Oakland were] personal items coming. Why did he do that?
. . . . .
I'm going to tell you the simple truth of this case, ladies and gentlemen. There's only one person that could have told you, but he didn't take the stand.
The court instructed the jury to disregard this statement and not to infer guilt from Douglas' exercise of his right not to testify.
During deliberation, the jury sent the following note to the court:
Individual making "something" legal, continues making "something." Ingredients become illegal; if individual continues (not knowing its illegality) is he breaking law because he doesn't know of new law.
Please explain! Problem is Instruction # 7.
The district court agreed with the government and sent the jury a supplemental instruction which stated that: "Referring to your Note 1[,] ignorance of the law is no excuse." The jury returned guilty verdicts against Douglas for attempt to manufacture euphoria and conspiracy to manufacture euphoria. The jury convicted Kathleen for conspiracy only.
The district court sentenced the Marshes pursuant to the Federal Sentencing Guidelines, authorized by 28 U.S.C. Sec. 994. The Marshes contested the probation officer's conclusion that euphoria is analogous to amphetamine in determining the base offense level for euphoria. The court ordered an evidentiary hearing to ascertain which drug listed in section 2D1.1 of the Guidelines is most analogous to euphoria. Based upon the expert testimony given at the evidentiary hearing, the court agreed with its probation officer and concluded that amphetamine is the drug most analogous to euphoria.
Kathleen argues that the district court erred when it admitted the Florida evidence because (1) the admission violated Federal Rule of Evidence Rule 404(b) because it was prior similar acts evidence; (2) the evidence was irrelevant as proof of conspiracy; (3) even if relevant, the prejudicial impact of the evidence outweighed its probative value; and (4) the district court should have given an instruction making the evidence admissible only against Douglas. We disagree. Our review is for abuse of discretion. United States v. Laurins, 857 F.2d 529, 541 (9th Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 3215, 106 L.Ed.2d 265 (1989).
"The threshold inquiry a court must make before admitting similar acts evidence under Rule 404(b) is whether that evidence is probative of a material issue other than character." Huddleston v. United States, 485 U.S. 681, 686, 108 S.Ct. 1496, 1499, 99 L.Ed.2d 771 (1988). However, even if probative on a material issue other than character, the evidence must still be excluded if the potential for unfair prejudice substantially outweighs its probative value. See Fed.R.Evid. 403.
We conclude there was no abuse of discretion. The drug ledger was probative of Kathleen's knowledge. Kathleen argued at trial that Douglas did not reveal his drug manufacturing activities to her. The drug ledger seized from her purse after the agents explicitly instructed Kathleen to removal only personal items contradicted this defense. The probative value of this evidence thus outweighs whatever prejudice may have occurred.
Kathleen contends that the district court erred when it omitted an instruction to the jury that a conspiracy is not guilt by association. Kathleen concedes that the district court gave an oral instruction, but she asserts that a written instruction should have been included.
Federal Rule of Criminal Procedure Rule 30 requires timely objections to jury instructions: "No party may assign as error any portion of the charge or omission unless that party objects thereto before the jury retires to consider its verdict, stating directly the matter to which that party objects and the grounds of the objection." When there is no objections to jury instructions at the time of trial, we will employ a plain error standard of review. See United States v. Kessi, 868 F.2d 1097, 1102 (9th Cir.1989). Plain error is found only in exceptional circumstances. Id.
We conclude that Kathleen waived this claim because she neither requested a guilt by association instruction nor objected...
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