U.S. v. Stone, 91-2193

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore BROWN, GARWOOD, and EMILIO M. GARZA; GARWOOD
Citation960 F.2d 426
Parties35 Fed. R. Evid. Serv. 670 UNITED STATES of AMERICA, Plaintiff-Appellee, v. Louis Elton STONE, and Denise Sienhausen, Defendants-Appellants.
Docket NumberNo. 91-2193,91-2193
Decision Date29 April 1992

Paul C. Looney, Houston, Tex., for Stone.

Robert Fickman, Schaffer, Lambright, Odom & Sparks, Houston, Tex. (court-appointed), for Sienhausen.

Douglas Durham, Paula Offenhauser, Kathlyn G. Skyder, Asst. U.S. Attys., and Ronald G. Woods, U.S. Atty., Houston, Tex., for the U.S.

Appeals from the United States District Court for the Southern District of Texas.

Before BROWN, GARWOOD, and EMILIO M. GARZA, Circuit Judges.

GARWOOD, Circuit Judge:

Defendants-appellants Louis Elton Stone (Stone) and Denise Sienhausen (Sienhausen) were convicted of conspiring to manufacture, and attempting to manufacture, in excess of one hundred grams of methamphetamine. They both appeal, raising various challenges to their convictions. We affirm.

Facts and Proceedings Below

In July 1989, Stone entered the Scientific Chemical Company in Harris County, Texas and attempted to purchase three pounds of ephedrine, which is used as a precursor chemical in the manufacture of methamphetamine, but was not itself a controlled substance at that time. Scientific Chemical was out of ephedrine, so the salesman took $350 from Stone, told him that he would order the ephedrine, and asked Stone to get back in touch with him in a few days. The salesman also recorded Stone's name, driver's license number, and address, and in accordance with the company's practice of cooperating with the Drug Enforcement Administration (DEA) by reporting purchases of certain chemicals, called Agent Norris Rogers at the DEA office in Houston with this information. After running some checks on Stone, Rogers called the Scientific Chemical salesman back and gave him his pager number, with instructions to give the number to Stone and tell Stone he could call the number to reach someone who could procure ephedrine for him.

Several days later, Stone called Rogers' pager number and told him that he was looking for someone who could provide him with ephedrine. Rogers arranged a meeting with Stone for the following day. At that meeting, on July 21, 1989, Rogers posed as a black market chemical salesman. Stone said that he had customers waiting for methamphetamine, and that he was anxious to supply it because he was in debt to his attorney for representation on a prior arrest for methamphetamine manufacturing. Rogers said that he was making a decent living as a black market chemical salesman, but that his real aspiration was to expand into the more lucrative area of methamphetamine manufacturing, and that he would supply the ephedrine only if Stone would teach him how to cook methamphetamine. Stone agreed. They worked out an arrangement in which Rogers would sell Stone a pound and a half of ephedrine for the $350 Stone had left with Scientific Chemical, and would give Stone another pound and a half in exchange for Stone's teaching him how to cook methamphetamine. Stone told Rogers that, at the suggestion of his girlfriend, he was operating a methamphetamine lab in the attic of her parents' house. Rogers asked him if he had all of the other chemicals and equipment necessary for manufacturing methamphetamine, and Stone said that he did. Stone and Rogers agreed to meet again three days later.

On July 24, they met outside a restaurant in Houston. Rogers was wearing a concealed transmitter in order to record their conversations. Stone told Rogers that there had been a change in plans; he was there to pick up his girlfriend's mother, who was going to be at home that afternoon, making the house unavailable for methamphetamine manufacturing. Stone told Rogers to go to a pay phone and wait for Stone to page him with further instructions. Rogers did so, and a few minutes later Stone called him and told him to meet him at a convenience store. Rogers went there, and Stone arrived shortly thereafter with a woman he introduced as his girlfriend Denise. This woman was later determined to be the defendant Sienhausen. In the back seat of Rogers' car, Stone and Sienhausen began talking about how badly they needed the ephedrine in order to sell some methamphetamine and alleviate their financial problems. They told Rogers that the house would not be available until later that night, after Sienhausen's mother went to bed, but they asked Rogers to go ahead and give them the ephedrine. Stone then suggested that he and Sienhausen leave and conduct the manufacturing on their own, and bring Rogers back part of the finished product. Suspecting that they were trying to cut him out of the operation altogether and would not return with the finished product, Rogers rejected their requests. Stone and Sienhausen therefore agreed to drive him to Sienhausen's parents' house several blocks away.

They arrived at the house and all three entered the garage. Stone and Sienhausen again tried to persuade Rogers to leave the ephedrine with them, but Rogers said that he would not do that until he had seen some lab equipment, so that he could be sure they actually knew how to manufacture methamphetamine. Stone or Sienhausen said that the lab equipment was under Sienhausen's bed and was inaccessible as long as her mother was up and moving around the house. Rogers then suggested that if Stone would at least write down the formula for manufacturing methamphetamine as proof that he knew how to do it, Rogers would leave and wait until later that night to return. Stone did so, discussing some of the steps as he wrote. During this time, Sienhausen mentioned that both she and Stone knew how to "cook," and that they never stored the lab equipment in one place, so that if either got arrested, the other would be able to continue operations and make some money to get the first one out of jail. Rogers took the recipe written by Stone and gave them about a pound of ephedrine. He left with Stone's promise that they would call him on the pager when they started the manufacturing.

After Rogers left, surveillance agents saw Stone and Sienhausen leave the house. Stone and Sienhausen never called Rogers, and they did not return to the house during the next several days. Two days later, on July 26, the police executed a search warrant on the house. They found no methamphetamine, ephedrine, or lab equipment. On July 27, surveillance was conducted at Stone's residence in Houston. A red truck arrived at the residence, and the officers searched the vehicle and detained the driver, a man named Gary Mock (Mock). In the truck they found Freon and sodium hydroxide, both of which are used in the methamphetamine manufacturing process. On July 31, after learning that a warrant had been issued for their arrest, Stone and Sienhausen turned themselves in.

On August 23, 1989, a two-count indictment was returned against Stone and Sienhausen, charging them with conspiring with each other to manufacture, and aiding and abetting each other in the attempt to manufacture, in excess of 100 grams of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846, and 18 U.S.C. § 2. A jury found Stone and Sienhausen guilty of both counts. The district court sentenced Stone to concurrent terms of 121 months' imprisonment and 5 years' supervised release on each count, and imposed a special assessment of $50 on each count. Sienhausen was sentenced to concurrent terms of 120 months' imprisonment and 5 years' supervised release on each count, and was also ordered to pay a special assessment of $50 on each count. Stone and Sienhausen both appeal their convictions.

I. Sufficiency of the Evidence for the Conspiracy Convictions

In a conspiracy prosecution under 21 U.S.C. § 846, the government must prove beyond a reasonable doubt (1) the existence of an agreement between two or more persons to violate the narcotics laws, (2) that each alleged conspirator knew of the conspiracy and intended to join it, and (3) that each alleged conspirator did participate in the conspiracy. United States v. Carter, 953 F.2d 1449, 1454 (5th Cir.1992); United States v. Harris, 932 F.2d 1529, 1533 (5th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 270, 116 L.Ed.2d 223 (1991). Stone and Sienhausen contend that the evidence was insufficient to establish that they agreed with each other to manufacture methamphetamine. They point out that in many of the events described at trial, Rogers was the instigator, and they agreed with his suggestions reluctantly if at all. They also point out that they failed to follow through on the incriminating promises that they made to Rogers--e.g., that they would manufacture methamphetamine in the garage on the night of July 24 and that they would allow him to observe the process. Their counsel suggested during opening and closing arguments at trial that they had simply conned Rogers out of the ephedrine, and that no proof of their true intent had been produced.

When the sufficiency of the evidence to support a conviction is challenged on appeal, it is not necessary that the evidence exclude every reasonable hypothesis of innocence; we review the evidence in the light most favorable to the government, drawing all reasonable inferences in support of the verdict, and will affirm the conviction if a rational trier of fact could have found that the evidence established each essential element of the offense beyond a reasonable doubt. United States v. Vasquez, 953 F.2d 176, 181 (5th Cir.1992); United States v. Evans, 941 F.2d 267, 271 (5th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 451, 116 L.Ed.2d 468 (1991). In this case, the evidence was clearly sufficient to permit the jury to reach a verdict of guilty. Stone and Sienhausen's statements to Rogers, if believed, are more than adequate to establish an agreement between the two of them to violate the narcotics laws, and given their purchase of...

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