U.S. v. Ridlehuber

• Decision Date: 29 December 1993
• Docket Number: No. 92-8296,92-8296
• Citation: 11 F.3d 516
• Parties: 40 Fed. R. Evid. Serv. 152 UNITED STATES of America, Plaintiff-Appellee, v. Harold C. RIDLEHUBER, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 516

11 F.3d 516

40 Fed. R. Evid. Serv. 152

UNITED STATES of America, Plaintiff-Appellee, v. Harold C. RIDLEHUBER, Jr., Defendant-Appellant.

No. 92-8296.

United States Court of Appeals, Fifth Circuit.

Dec. 29, 1993.

Gerhard Kleinschmidt, Fort Worth, TX, for defendant-appellant.

Philip Police, Richard L. Durbin, Jr., Asst. U.S. Attys., Ronald F. Ederer, U.S. Atty., San Antonio, TX, for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before EMILIO M. GARZA and DeMOSS, Circuit Judges, and ZAGEL, ¹ District Judge.

ZAGEL, District Judge:

Harold Ridlehuber, Jr., convicted of possessing an unregistered short-barreled shotgun, was sentenced to thirty months in prison, a three-year term of supervised release and a $3000 fine. He appeals from that conviction.

I. FACTS

Much of the physical evidence in this case was seized in September 1991 when law enforcement officers executed several search warrants in Hillsboro, Texas. During the search of a house leased by Harold Ridlehuber, Sr., for the use of his son, the defendant, officers found a short-barreled Stevens Savage 20-gauge shotgun resting on an open shelf in the kitchen. ² Next to the shotgun, the officers found an ammunition clip for a Colt AR-15 rifle. In another part of the house the officers found a Mossberg 20-gauge shotgun of legal length standing upright against a wall quite near a door, two more AR-15 clips and a box of 20-gauge shells. A few 20-gauge casings were found on the driveway. In addition to the weapons, the officers found the following: a drum containing 230 pounds of sulfuric acid, two gallons of ether, a can of ether starting fluid, a pan containing aluminum shavings, a hot plate, tubing, a Pyrex funnel, thermometers, and rubber stoppers.

Search warrants were also executed at Ridlehuber, Sr.'s home and at his place of business, a Hillsboro metal plating shop where defendant worked with his father. In Ridlehuber, Sr.'s house was a Colt AR-15 rifle and magazines, which Ridlehuber, Sr. said belonged to his son. At the business office, agents seized numerous chemicals including phenylacetonitrile, ethyl acetate, sodium hydroxide, monomethylamine, ether, muriatic acid, acetone, and reagent alcohol. In defendant's truck, parked at his father's office, was a loaded .45 caliber pistol. Except for the monomethylamine, all of the chemicals were later returned to Ridlehuber Sr., who used the chemicals in his metal plating business.

Facts like these are hard to dispute and defendant did not bother to do so. At trial the parties presented their respective versions of what these facts mean. The central issue on appeal concerns how the government went about convincing the jury that its interpretation of the facts is the right one.

The evidence presented by the government at trial had a dual focus: drugs and guns. The evidence relating to drugs provided a motive for defendant's possession of the shotgun, while the gun formed the basis for the weapons charge. Motive is not an element of the crime for which defendant was convicted. But the government can prove motive even when it does not have to and here it wanted to provide an explanation for why the gun was in the house. Indeed, proof of defendant's motive for possessing the gun took center stage at trial; the gun itself, like a corpse that opens a detective story, served more as a prop around which the government's theory of the case revolved.

In the government's case-in-chief, several government witnesses, law enforcement personnel experienced in the investigation of drug labs, said that the chemicals and other materials found in defendant's residence and place of employment could be used to manufacture illegal drugs, namely, methamphetamine or amphetamine. This fact was not mentioned in passing. Rather, several witnesses highlighted the possible connection between the evidence seized and the manufacture of drugs. And the government wasted no time presenting this possible connection to the jury. The government's first witness was Robert Wilkerson, a narcotics investigator with the Texas Department of Public Safety, who participated in the investigation leading to Ridlehuber's arrest. The first subject of Wilkerson's testimony was his experience dealing with "individuals engaged in the manufacture of methamphetamine and amphetamine," illegal drugs "generally manufactured by individuals privately." He then identified the defendant and testified about the search warrants that were executed on September 9, 1991 at defendant's residence and place of employment.

Wilkerson was shown about thirteen photographs taken at J & R Coating, Ridlehuber, Sr.'s metal plating shop. Most of the photographs were of various chemicals used in the business that were stored at the shop. Wilkerson testified that although the chemicals shown in the photographs have legitimate uses, some of the chemicals are frequently found in illicit methamphetamine and amphetamine labs. Wilkerson also testified briefly about weapons and ammunition found during the search. Specifically, a pistol and ammunition clip were found on the floorboard of defendant's truck, a Colt AR-15 rifle and ammunition were discovered at his father's home.

Two narcotics investigators testified about the execution of the search warrant at defendant's residence. Both testified that the residence had a distinct chemical odor that they have come to associate with clandestine drug labs that produce methamphetamine and amphetamine. One investigator, Coy West, testified about the chemicals and other items, such as aluminum shavings, a hot plate, plastic tubing and thermometers, that were found in defendant's residence. He said he had seen the same kinds of chemicals and other items in clandestine drug labs. ³

A Bureau of Alcohol, Tobacco and Firearms agent named Ruben Chavez testified about the short-barreled shotgun found on defendant's kitchen shelf. Chavez explained that a short-barreled or sawed-off shotgun is a gun that was at one time legal, but has been modified such that the barrel length is less than 18 inches or the overall length is less than 26 inches. The shotgun found in defendant's residence had a barrel length of 15 and 3/4 inches and an overall length of approximately 25 and 1/2 inches. According to Chavez, although the hammer was broken off, the gun could be cocked and fired if the hammer were pulled back with a tool, such as a pen or screwdriver. Furthermore, Chavez testified that sawed-off shotguns are commonly found in drug labs for three reasons. Their reduced size makes them easier to conceal, easier to wield in a gunfight, and the short barrel creates an extreme spread pattern that can knock down multiple adversaries. Chavez did not specify that the shotgun at issue here would fulfill all these purposes.

The testimony of one of the government's witnesses, Deborah Reagan, a chemist with the Texas Department of Public Safety, was focused exclusively on the prosecution's drug lab theory. After attesting to her extensive experience analyzing evidence seized from clandestine drug labs, Reagan testified in detail about the various chemicals seized in connection with this case and their potential usefulness in the production of methamphetamine or amphetamine. ⁴ She testified that the chemicals found at defendant's residence and place of employment were precursor chemicals necessary in the production of methamphetamine and amphetamine. Reagan stated that although the chemicals found were necessary to make methamphetamine and amphetamine, two precursor chemicals were not found.

Of the seven witnesses that the government called in its case-in-chief, five gave testimony in support of the government's theory that defendant possessed the shotgun to protect a clandestine drug lab. ⁵ The government continued its efforts to buttress this theory during the cross examination of Ridlehuber, Sr. Most of the inquiries on cross concerned the chemicals used in the metal plating business--Ridlehuber Sr.'s methods for storing the chemicals, his recordkeeping practices with regard to the chemicals, and the potential for the illegal use of the chemicals to manufacture drugs. And in his closing argument, the prosecutor articulated what had been intimated all along: Ridlehuber possessed the sawed-off shotgun to protect an illegal drug lab.

The strongest evidence linking defendant to the sawed-off shotgun is that it was found on an open shelf in the kitchen of the house that defendant's father leased for his son's use. ⁶ Defendant maintains that the shotgun is not his but, rather, is the property of William Starrett, a man who lived with defendant in the leased house for about a month during July and August of 1991. Starrett was no longer living with defendant when the search warrants were executed in September 1991, but his belongings were found in one of the bedrooms of the leased house when it was searched.

Although there is evidence that defendant was in relatively close proximity to the short-barreled shotgun, there is no evidence that defendant ever handled or closely examined the gun. In addition to the gun being on an open shelf, defendant also had an opportunity to view the gun when Starrett first brought it to the leased house. One of the defense witnesses, Joseph Williford, testified that defendant and he were barbecuing hamburgers when Starrett drove up and took the shotgun out of his car. Starrett held up the gun and said it did not work, but that he was going to try and get it fixed. Williford said that defendant did not handle the gun on that occasion, and that he never saw the gun again.

II. ADMISSION OF "OTHER ACTS" EVIDENCE UNDER RULE 404(b)

Before trial Ridlehuber's counsel moved in limine for an order directing the government to refrain from offering or alluding to evidence of drug manufacturing by defendant. Such evidence, defendant argued, should be excluded under Federal Rule...