U.S. v. Richard, s. 91-6140

• Decision Date: 24 June 1992
• Docket Number: Nos. 91-6140,91-6143 and 91-6146,91-6142,s. 91-6140
• Citation: 969 F.2d 849
• Parties: 36 Fed. R. Evid. Serv. 227 UNITED STATES of America, Plaintiff-Appellee, v. Clarence Timothy RICHARD, Avery Parker Boyd, Jr., Bruce Carl Henley, and Brian David Russell, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 849

969 F.2d 849

36 Fed. R. Evid. Serv. 227

UNITED STATES of America, Plaintiff-Appellee, v. Clarence Timothy RICHARD, Avery Parker Boyd, Jr., Bruce Carl Henley, and Brian David Russell, Defendants-Appellants.

Nos. 91-6140, 91-6142, 91-6143 and 91-6146.

United States Court of Appeals Tenth Circuit.

June 24, 1992.

M.J. Farber, Asst. U.S. Atty. (Timothy D. Leonard, U.S. Atty., with him on the briefs), Oklahoma City, Okl., for plaintiff-appellee.

Thomas D. McCormick, Oklahoma City, Okl., on the brief for defendant-appellant, Clarence Timothy Richard.

Charles Louis Roberts, El Paso, Tex., for defendants-appellants, Avery Parker Boyd and Brian D. Russell.

Jack D. Fisher, Edmond, Okl., for defendant-appellant, Bruce Henley.

Before ANDERSON, ALDISERT, ^* and TACHA, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

Clarence Timothy Richard, Avery Parker Boyd, Jr., Bruce Carl Henley, and Brian David Russell ("appellants") appeal their convictions, after a jury trial, for the possession of approximately 300 pounds of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and for conspiring to do the same, in violation of 21 U.S.C. § 846. Because these cases arose from the same transaction and raise common legal issues on appeal, we have consolidated the appeals for purposes of disposition.

Appellants challenge their convictions on three grounds: (1) that the district court erred in refusing to dismiss the indictment because law enforcement lost or destroyed most of the marijuana that appellants allegedly possessed; (2) that the district court violated Fed.R.Evid. 704(b) by impermissibly permitting an expert witness to state an opinion or inference as to the appellants' mental state; and (3) that the evidence at trial was insufficient to support their convictions. Finding no error, we affirm.

I. FACTS

The charges against appellants arose from a "reverse" drug sting operation mounted by the Oklahoma City Police Department ("OCPD") and conducted by Detective Mark Danner, an officer with the OCPD, Narcotics Unit. In late October and early November of 1990, Danner, posing as a drug supplier, engaged in a series of taped telephone conversations with Larry Guyton, a resident of Blytheville, Arkansas, who wished to purchase 300 pounds of marijuana.

During the conversations, Danner negotiated an agreement to sell Guyton the marijuana, 200 pounds of which was to be sold for cash, and 100 pounds of which was to be sold on credit. Guyton informed Danner that two vehicles, one the "bank," would travel to Oklahoma City to complete the transaction. Guyton also informed Danner that he would not be present but that a colleague, Jimmy Wells, also from Blytheville, would be acting on his behalf.

In preparation for the deal, Danner obtained eight boxes of marijuana with a total weight of approximately 298 pounds from the Oklahoma State Bureau of Investigation ("OSBI") laboratories. He did so pursuant to a written agreement between the OCPD and the Oklahoma State Bureau of Narcotics and Dangerous Drugs. The agreement provided that the OCPD could retain one of the eight boxes used in the operation as well as samples from each of the remaining seven boxes. The seven remaining boxes were to be returned to the OSBI warehouse.

On November 6, 1990, Guyton informed Danner by telephone that the two vehicles, an automobile and an RV, had arrived and were at a Holiday Inn motel in Oklahoma City. Police officers set up surveillance at the Holiday Inn, and Danner traveled there to meet Wells.

After a motel room meeting between Wells and Danner, and after a brief dispute over where the marijuana would be delivered, ¹ Wells took Danner to the RV. There, Danner met Colette Bernaugh, who was later confirmed to be the "bank" previously referred to by Guyton. Danner also encountered: Richard, who moved behind him and locked the door as he entered the RV; Russell, who was sitting in the driver's seat, watching him as he entered; and Boyd, who was laying mostly outside of Danner's view on a bed at the back of the RV. The remaining appellant, Henley, was not present during the encounter. All four appellants and Bernaugh, it was later learned, had traveled in the RV to Oklahoma City from St. Louis.

While in the RV, Danner and Bernaugh discussed details of the transaction, and Bernaugh showed Danner a tool box containing several large bundles of cash, later found to be approximately $200,000. Danner then exited the RV and left the Holiday Inn to retrieve the marijuana and make final arrangements for the transaction at the Crosswinds Inn in Oklahoma City. He subsequently returned to the Holiday Inn and had Bernaugh, Wells and appellants follow him in their respective vehicles to the Crosswinds Inn.

Upon arrival, Danner and Wells proceeded to a motel room where Wells was given a sample of the marijuana from one of the boxes. Wells took the sample to the RV. Shortly afterwards, he returned with Bernaugh and the money. As previously arranged, Danner telephoned a fellow officer, Lt. Charles Allen, and directed him to deliver the remaining seven boxes of marijuana to the RV. Danner and Bernaugh then left the motel room and walked to the RV, with Bernaugh carrying the open box, from which the marijuana sample had been provided. When Allen arrived in an undercover vehicle with the rest of the marijuana, Bernaugh began unloading the boxes and placing them in the front of the RV. As Allen then observed, and as appellants themselves testified, Boyd passed the boxes, one by one, to either Richard or Henley, who in turn stacked them in the rear of the RV. Russell held the door to the RV open during the loading process. When all but one of the boxes were loaded, appellants and Bernaugh were arrested. After the arrest, Danner, Allen and other officers entered the RV. Several of the officers later testified that the boxes emitted a strong odor of marijuana.

Following the operation, officers from the OCPD photographed the boxes of marijuana as they stood stacked at the back of the RV, seized the boxes, and returned them to Allen. Allen placed the marijuana in the OCPD Forensic Laboratory. Two days later, on November 8, 1990, Allen took samples from the seven boxes that had remained previously unopened, and officers from the OCPD again photographed the boxes. The box opened during the operation was retained and the seven from which samples had been taken were returned the next day by Danner to the OSBI whose agents stored it in an area where similar narcotics were located and from where the boxes were originally taken. Ultimately, these seven boxes were commingled with approximately twenty-three other boxes of similar size, shape, weight, and markings, in such a way that made it impossible for either Danner or the OSBI to later identify the seven boxes. Further, two OSBI employees testified at a pretrial hearing that the agency had destroyed marijuana in a pit burn after the seven boxes were returned. R. Vol. II at 55, 109. Referring specifically to these boxes, one agent stated that "very possibly some of them could have been destroyed." Id. at 55.

II. RICHARD, BOYD, HENLEY, AND RUSSELL

A. Destruction or Loss of Material Evidence

Appellants first argue that the district court erred in not dismissing their indictment on due process grounds, or otherwise sanctioning the government, for the government's destruction or loss of exculpatory evidence. They claim that the boxes were exculpatory in that they emitted no odor of marijuana. The presence or lack of an odor of marijuana from these boxes was a central issue, as the government sought to use the presence of odor to establish appellants' knowledge as an element of the charged offenses.

"Whether destruction [or loss] of evidence by the prosecution amounts to a violation of due process turns on the principles enunciated in California v. Trombetta, 467 U.S. 479 [104 S.Ct. 2528, 81 L.Ed.2d 413] (1984), and Arizona v. Youngblood, 488 U.S. 51, [109 S.Ct. 333, 102 L.Ed.2d 281] (1988)." United States v. Donaldson, 915 F.2d 612, 614 (10th Cir.1990). In Youngblood, the Supreme Court distinguished between "potentially useful" evidence and "material exculpatory" evidence. The Court held that "unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." 488 U.S. at 58, 109 S.Ct. at 337. However, when the government fails to disclose material exculpatory evidence to a defendant, the good or bad faith of the government is not relevant. Id. at 57, 109 S.Ct. at 337.

Here, the district properly determined that the boxes of marijuana provided only "potentially useful" evidence, not "material exculpatory" evidence, ² and thereafter concluded that appellants had not demonstrated bad faith by any government actor. Order of Jan. 16, 1991, at 4, 8-9.

Since the district court's determination regarding bad faith is a mixed question of fact and law, in which "the quintessentially factual question of intent" predominates, United States v. McKie, 951 F.2d 399, 403 (D.C.Cir.1991), we apply the clearly erroneous standard of review. United States v. Raymer, 941 F.2d 1031, 1039 n. 4 (10th Cir.1991) (" 'Where the mixed question involves primarily a factual inquiry, the clearly erroneous standard is appropriate.' " (quoting Supre v. Ricketts, 792 F.2d 958, 961 (10th Cir.1986))).

In an attempt to demonstrate bad faith, appellants contend that the government intentionally destroyed the evidence knowing that this evidence was essential to the appellants' theory of the case. They assert that the police were on notice that the issue of whether the boxes gave off an odor of marijuana would be raised throughout the proceedings. However, appellants failed to proffer any evidence in support of this contention. See Donaldson, 915 F.2d at 614. On the other hand, as the district court noted, "the...