U.S. v. Rigsby
| Decision Date | 04 September 1991 |
| Docket Number | 90-6128,Nos. 90-6127,s. 90-6127 |
| Citation | 943 F.2d 631 |
| Parties | , 33 Fed. R. Evid. Serv. 1417 UNITED STATES of America, Plaintiff-Appellee, v. Wendell B. RIGSBY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
John W. Gill, Jr., U.S. Atty., Michael Winck, Asst. U.S. Atty. (argued and briefed), Knoxville, Tenn., for plaintiff-appellee.
Howell Clements (argued and briefed), Chattanooga, Tenn., for defendant-appellant.
Before KEITH and MARTIN, Circuit Judges, and CONTIE, Senior Circuit Judge.
Defendant, Wendell Brett Rigsby ("defendant"), appeals his conviction and sentence for: (1) manufacturing 1,000 or more marijuana plants, (2) using and carrying three firearms in relation to a drug trafficking offense, and (3) possessing an unregistered firearm shorter than 18 inches long. For the reasons stated below, we AFFIRM.
On July 17, 1989, law enforcement authorities with the Tennessee Governor's Task Force on Marijuana Eradication observed nine separate patches of marijuana by aerial surveillance in Van Buren County, Tennessee. The patches were located in a mountainous, wooded area from which the authorities proceeded to eradicate the marijuana. Lieutenant Mike Dover ("Lt. Dover") of the Tennessee Highway Patrol, who piloted the helicopter, located each of the nine marijuana patches and directed a ground crew of agents to each of the nine patches by radio. The agents established a landing zone adjacent to a dirt road. The road led into the mountainous area where the marijuana patches were located and accessed a paved public road. In order to reach the marijuana patches, agents proceeded from the landing zone on the dirt road to a picnic campsite area that had been cleared on property owned by defendant's parents. From the picnic campsite area, wooded trails led to seven of the nine patches. The opening to the wooded trail adjacent to the picnic site was blocked by a barricade of underbrush, fence posts and wire. The remaining two patches were reached by following a logging road past the landing zone to a point approximately 100 to 200 yards away from patch eight.
The agents drove a four-wheel drive vehicle over a small embankment adjacent to the blockage at the picnic site to reach the wooded trails on the other side. The agents proceeded to eradicate the marijuana from the nine patches. Some of the eradicated plants had to be airlifted out of the woods because of the large number of plants and the rough terrain.
While the helicopter was airlifting some of the marijuana from patch six, agents heard the sound of a gunshot. The agents took cover, thinking someone was shooting at them. A search of the area disclosed a booby-trapped twelve-gauge shotgun rigged by a camouflaged green trip wire which stretched across the trail and attached to the trigger of the shotgun. Inspection of the shotgun revealed that it had just been fired. This shotgun was found at the end of patch six.
Shortly after the booby-trapped gun had fired, the agent who was eradicating patch eight heard a noise between patches eight and nine, which sounded like something hollow being dropped on the ground. He also heard what sounded like someone running through the woods. The agent relayed this information to the other agents via radio.
A short while later, the agents observed defendant leaving the wooded area and passing through the landing zone area en route to the paved road. He was driving a four-wheel drive vehicle which contained two chain saws. As defendant was leaving the landing zone area in the four-wheel drive vehicle, Sheriff Donny Evans ("Sheriff Evans") stopped defendant. Defendant advised Sheriff Evans that he was picking up some chain saws that he had been using to cut trees. Sheriff Evans instructed defendant to leave the area and not return. Shortly thereafter, defendant was observed driving from the paved road back into the wooded section at a high rate of speed with a rifle strapped on his shoulder.
An agent who was stationed at the landing zone radioed Lt. Dover in the helicopter and related his observations of defendant returning to the wooded area in his vehicle with a rifle strapped to his shoulder. Lt. Dover observed from the helicopter a man sitting in a four-wheel drive vehicle at the intersection of trails in the woods slinging a rifle over his shoulder and leaving the wooded area in the direction of the landing zone. Lt. Dover directed the agent at the landing zone to stop defendant until he landed the helicopter. Agent Andy Woodall ("Agent Woodall") stopped defendant and seized the rifle which was slung across defendant's shoulder. The rifle, which was identified as an AR-15, held a clip containing 29 rounds of .223-caliber ammunition, and the defendant had in his pocket a separate clip containing 20 rounds of .223-caliber ammunition. Lt. Dover landed the helicopter in the landing zone, approached defendant and advised him that he was being arrested for carrying a weapon. He then advised defendant of his Miranda rights.
Agent Tom Gothard ("Agent Gothard"), who had been working in patch six where the booby-trapped shotgun had been set off, went to the picnic site to determine if there was anyone present posing a danger to the agents searching the patches. He had received the earlier radio messages that someone had been heard running through the woods and that defendant had been observed in the area with the rifle strapped to his shoulder. There was a tent in the campsite area. Agent Gothard pulled back the unzipped tent flap and observed the sawed off shotgun that is the subject of counts two and three in the present case. Near the tent he observed and seized a military ammunition box containing .223-caliber rounds of ammunition, cleaning materials for the AR-15 rifle and marijuana which was drying in an open box.
Defendant was taken to the Van Buren County Jail and again read his Miranda rights. Defendant signed a form indicating that he understood his rights. Agents Gothard and Woodall interviewed defendant. When asked by the agents, defendant stated that he would feel more comfortable with his mother present, and she was allowed to participate in the interview. Defendant at first denied any knowledge of the sawed-off shotgun or any of the marijuana. Agent Gothard then advised defendant that he did not believe that defendant was telling the truth. Agent Gothard stated that he had been trained in eye accessing, a technique by which he could watch persons' reactions with their eyes to determine whether they were telling the truth. Defendant then indicated that the marijuana that had been found in a box at the campsite was his and that he also owned the sawed-off shotgun.
During the interview, Agent Gothard had written down the questions asked and the answers given. At the conclusion of the interview, he gave the notes to defendant and his mother to review. After reviewing the notes, both defendant and his mother signed the notes.
On March 13, 1990, a federal grand jury returned a three-count indictment. Count one charged defendant with manufacturing 1,000 or more marijuana plants during the spring and summer of 1989, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A). Count two charged defendant with using and carrying three separate firearms during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c). Count three charged defendant with knowingly possessing the Savage 12-gauge sawed-off semi-automatic shotgun with a barrel length shorter than eighteen inches, which was not registered to defendant in the National Firearms Registration and Transfer Record, in violation of 26 U.S.C. § 5861(d), 5871.
Prior to trial, defendant filed motions to suppress the evidence seized by the government and the confession of defendant. The district court held a hearing on defendant's motions to suppress on May 22, 1990. At the conclusion of the suppression hearing, the district court denied defendant's motions to suppress and entered an order to that effect on May 25, 1990.
Defendant's jury trial commenced on May 29, 1990. During the trial, defendant's cellmate, Tom Christian ("Christian"), testified against him. Christian stated that defendant told him how he had grown the marijuana, how tall it had grown and the market value of the marijuana. Christian also testified that defendant had stated that he had strung up a shotgun booby-trap. Prior to trial, Christian had written letters to the United States Attorney's office indicating that he had information that might be helpful to the prosecutor in defendant's case. Defendant attempted to impeach Christian's testimony at trial by using two of the letters in which Christian offered to cooperate with the prosecution and the reasons for his cooperation. These letters were introduced into evidence by the prosecution over defendant's objection.
On May 31, 1990, the jury returned a verdict of guilty on each of the three counts charged against the defendant. On August 9, 1990, the district court sentenced defendant to a term of incarceration of 151 months on count 1 and 120 months on count three, to run concurrently, and a term of 60 months on count two, to run consecutive to counts one and three, for a total of 211 months. The district court also sentenced defendant to supervised release for a period of five years on count one and three years on each of counts two and three, all to run concurrently. Defendant was not fined, but did receive a special assessment of $50 on each count.
Defendant, through his attorney, filed a timely notice of appeal on August 13, 1990. Defendant also filed a pro se notice of appeal. He alleges several errors on appeal. Defendant avers that the district court erred by: (1) denying his motion to suppress evidence at trial on May 25, 1990; (2) denying his motion for acquittal and for a...
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