U.S. v. Stockton
| Decision Date | 17 August 1992 |
| Docket Number | Nos. 91-2547,91-2552,s. 91-2547 |
| Citation | 968 F.2d 715 |
| Parties | 36 Fed. R. Evid. Serv. 237 UNITED STATES of America, Appellee, v. William D. STOCKTON, also known as Bubba, Appellant. UNITED STATES of America, Appellee, v. Gary Wayne BADLEY, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Mark E. Maddux, Springfield, Mo., argued, for Stockton and Donald R. Cooley of Springfield, Missouri.
Gregory K. Johnson, Springfield, Mo., argued, for appellee.
Before McMILLIAN, Circuit Judge, BRIGHT, Senior Circuit Judge, and LOKEN, Circuit Judge.
Gary Wayne Badley and William D. Stockton (collectively "defendants") appeal from final judgments entered in the United States District Court 1 for the Western District of Missouri, upon jury verdicts, finding them guilty of involvement in a conspiracy to manufacture methamphetamine. Badley was found guilty of one count of conspiracy to manufacture and distribute methamphetamine in violation of 21 U.S.C.A. § 846 (West Supp.1992) and one count of possession of a three-neck, round-bottom flask with the intent to manufacture methamphetamine in violation of 21 U.S.C. § 843(a)(6). Badley was sentenced to 235 months imprisonment on the conspiracy count and 48 months, to be served concurrently, on the possession of a flask count; five years supervised release on the conspiracy count and one year supervised release, to be served concurrently, on the possession of a flask count; and a special assessment of $100.00. Stockton was found guilty of one count of conspiracy to manufacture and distribute methamphetamine in violation of 21 U.S.C.A. § 846 (West Supp.1992). Stockton was sentenced to 235 months imprisonment, five years supervised release, and a special assessment of $50.00.
For reversal, Badley argues that the district court erred in (1) denying his motion for acquittal on the basis that multiple conspiracies were shown and (2) determining his base offense level. For reversal, Stockton argues that the district court erred in (1) denying his motion for severance of trial, (2) admitting photographs in violation of the Best Evidence Rule, (3) determining his base offense level, and (4) denying him a two-level reduction for acceptance of responsibility. For the reasons
discussed below, we affirm the judgments of the district court.
This case involves a conspiracy to manufacture and distribute methamphetamine. In August 1989, the police received information about an unpleasant odor and laboratory equipment in a rented house at 2606 Allen Drive in Greene County, Missouri. Police, accompanied by the owner of the home at 2606 Allen Drive, searched the residence and recovered laboratory equipment, precursor chemicals, and methamphetamine. Notes were also recovered which contained references to "Bubba." According to the government's theory of the case, Stockton, who was called "Bubba," was a "cook" for the conspiracy and "cooked" methamphetamine at the house on Allen Drive. Stockton and "Darrell" 2 would "cook" methamphetamine about once a week, making up to twelve ounces each time, in exchange for cash and drugs. Terry Glen Appleby and others were involved in the distribution of the methamphetamine. Some of the laboratory equipment for the Allen Drive laboratory was kept at a private storage company in Missouri, and a search of the storage area turned up glassware and precursor chemicals for making methamphetamine.
In April 1990, Appleby and Badley attempted to order glassware and precursor chemicals from Brookside Toy and Hobby. A shop employee contacted the Drug Enforcement Administration (DEA), which commenced an undercover operation. Various undercover DEA agents negotiated with Appleby and Badley for the sale of glassware and precursor chemicals. DEA agents had numerous phone calls and meetings with Appleby and Badley. Tapes of conversations were introduced at trial as was a videotape of Appleby and Badley inspecting the glassware that the undercover DEA agents had acquired for them. Badley negotiated with the DEA agents for the purchase of a 110-pound drum of phenylacetic acid (PA) and other precursor chemicals. Badley also told the DEA agents that he had purchased two other 110-pound drums of PA. Undercover agents met the defendants in various hotels to sell glassware and precursor chemicals. During a search of Badley's hotel room, 3 DEA agents recovered a book entitled "Secrets of Methamphetamine Manufacturing" by Uncle Fester and a weight set, as well as a loaded handgun and a motel receipt from Chanute, Kansas.
Evidence was also obtained from methamphetamine laboratories operated in Kansas. A house in Thayer, Kansas, was rented to Appleby. Notes with references to "Bubba" (Stockton) were found in Kansas, and witnesses identified Badley as paying electric bills for the house containing the methamphetamine laboratory in Kansas. A storage facility was also rented in Kansas by Appleby. DEA agents searched this facility and seized laboratory glassware and precursor chemicals.
Originally six defendants were charged, but charges against one were dismissed pre-trial and one received a judgment of acquittal. Defendants Badley, Stockton, Rippy 4 and Appleby were convicted. This appeal involves Badley and Stockton whose cases were consolidated for appeal. Stockton was charged and convicted of one count of conspiracy to manufacture and distribute methamphetamine. Badley was charged with five counts. Badley received a judgment of acquittal on one count of travelling in interstate commerce to facilitate manufacturing and was found not guilty on two counts of manufacturing methamphetamine. Badley was found guilty of conspiracy to manufacture and distribute methamphetamine and possession of a three-neck, round-bottom flask with the intent to manufacture.
Badley argues that the evidence at trial showed multiple conspiracies, not a single conspiracy, and, therefore, the district court should have directed a verdict of acquittal on the conspiracy charge. Badley argues that no evidence connected him to the activity at the Allen Drive residence and the private storage facility. Therefore, Badley argues that activity constituted a separate conspiracy from his attempt to purchase glassware in Kansas City with Appleby and the activity in Kansas. Badley admits that evidence connected him with Appleby and the purchase of laboratory glassware and precursor chemicals, but argues that there was no evidence to connect him with the methamphetamine laboratory in Thayer, Kansas.
The government argues that there was sufficient evidence for the jury to find a single conspiracy existed. The district court instructed the jury that if it found multiple conspiracies instead of the single conspiracy charged in the indictment, it should acquit on the conspiracy count. 5 The government argues that the majority of the conspirators remained the same throughout the course of the conspiracy. The government argues that different members of the conspiracy had different roles, that is, while Stockton "cooked," Badley obtained glassware and chemicals.
We agree that there was sufficient evidence for the jury to find a single conspiracy. Appleby was involved with the methamphetamine laboratory on Allen Drive and also purchased chemicals and glassware with Badley. Additionally, evidence from the Kansas laboratory showed that Badley dropped off utility payments for Appleby's Thayer, Kansas, home where the methamphetamine laboratory was housed. Additionally, other members of the conspiracy, such as Pixie Rippy, were involved in all aspects of the conspiracy's activities. Based on this evidence, it was reasonable for the jury to find one single conspiracy which included the activity at the Allen Drive residence as well as the residence in Thayer, Kansas.
Stockton argues that the district court erred in denying his motion for severance. Stockton argues that because he was only charged with Count I (conspiracy) of a five count indictment, all of the evidence on the other counts was irrelevant to him and had a negative spill-over effect.
The government argues that because there was no showing of real prejudice, severance was not required. The government argues that Stockton was a key member of the conspiracy because he was a "cook" at the methamphetamine laboratory on Allen Drive. Additionally, notes found in the Thayer, Kansas, methamphetamine laboratory referred to "Bubba last two cooks." Finally, the government argues that because the jury was instructed that if it found multiple conspiracies, it should acquit the defendants of the conspiracy count, the jury's finding of one conspiracy shows that severance would not have been appropriate.
Federal Rule of Criminal Procedure 8(b) provides that "[t]wo or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses." This court reviews a district court's denial of a motion for severance under the abuse of discretion standard. E.g. United States v. Sweeney, 817 F.2d 1323, 1325 (8th Cir.), cert. denied, 484 U.S. 866, 108 S.Ct. 189, 98 L.Ed.2d 141 (1987). We hold that the district court did not abuse its discretion in denying the motion for severance. When defendants are charged with a conspiracy, there is a presumption that they will be tried together. See United States v. O'Meara, 895 F.2d 1216, 1218-19 (8th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 352, 112 L.Ed.2d 316 (1990). Stockton supplied no examples or evidence of any prejudice from this joint trial. Additionally, evidence linked Stockton to both the methamphetamine laboratory on Allen Drive and the one in Thayer, Kansas. Therefore, there was nothing improper about his...
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