U.S. v. Sturmoski

• Decision Date: 03 June 1992
• Docket Number: No. 91-2209,91-2209
• Citation: 971 F.2d 452
• Parties: 35 Fed. R. Evid. Serv. 1043 UNITED STATES of America, Plaintiff-Appellee, v. Walt Anthony STURMOSKI, a/k/a Anthony W. Williams, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 452

971 F.2d 452

35 Fed. R. Evid. Serv. 1043

UNITED STATES of America, Plaintiff-Appellee, v. Walt Anthony STURMOSKI, a/k/a Anthony W. Williams Defendant-Appellant.

No. 91-2209.

United States Court of Appeals Tenth Circuit.

June 3, 1992.

Darryl S. Cordle, of Albuquerque, N.M., for defendant-appellant.

Tara Neda (Don J. Svet, U.S. Atty., with her on the brief), Asst. U.S. Atty., Albuquerque, N.M., for plaintiff-appellee.

Before TACHA and EBEL, Circuit Judges, and ROGERS ^*, District Judge.

TACHA, Circuit Judge.

Appellant Walt Sturmoski appeals his conviction and sentence for possession of a firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1) [Count I], possession of a firearm not identified by serial number in violation of 26 U.S.C. § 5861(i) [Count II], maintaining a place for the purpose of manufacturing methamphetamine in violation of 21 U.S.C. § 856 [Count III], attempting to manufacture methamphetamine in violation of 21 U.S.C. § 846 [Count IV], and carrying and using a firearm to facilitate the above drug-trafficking offenses in violation of 18 U.S.C. § 924(c) [Counts V and VI]. On appeal, Sturmoski raises six arguments: (1) that the district court improperly denied his motion to suppress; (2) that the district court erred in admitting evidence of his prior acts; (3) that the district court erred in admitting expert testimony; (4) that the district court improperly denied his motions for relief from prejudicial joinder and for bill of particulars; (5) that the district court improperly sentenced him under the United States Sentencing Guidelines; and (6) that his sentence violates the Eighth Amendment. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

I. BACKGROUND

On January 31, 1991, a state district court judge issued a search warrant for Sturmoski's residence at 237 90th Street, S.W., in Albuquerque, New Mexico. The affidavit submitted as support for the warrant described structures, vehicles, street location, fencing, and the entrance in detail because the address was not displayed on the property. The affidavit also stated that a confidential informant (informant # 1) had shown the residence to Sergeant Bill Rhem.

The affiant, Deputy Adam Simonson, stated that he had become familiar with the manufacture of methamphetamine through his experience, training and association with other law enforcement officers. In his affidavit, Simonson noted that Sergeant Rhem had informed him that informant # 1 had personal knowledge that Sturmoski was preparing to manufacture methamphetamine at 237 90th Street, S.W. Apparently, informant # 1 had been associated with Sturmoski and had manufactured methamphetamine in the past.

A second confidential informant (informant # 2) corroborated this information by stating that Sturmoski was involved in the manufacture of methamphetamine. Informant # 2 had observed a methamphetamine laboratory in a garage at 237 90th Street, S.W. in the summer of 1990. Further, according to informant # 2, methamphetamine oil was buried on the premises. Simonson confirmed that a suspected methamphetamine laboratory in the garage at 237 90th Street, S.W. had burned in mid-1990. Informant # 2 also had proven reliable in the past. On the basis of this and additional information, the state district court judge issued the search warrant.

At trial, Simonson testified concerning what law enforcement officers found when they executed the search warrant. They found Sturmoski located in an office trailer seated next to a loaded Ruger .22-caliber semi-automatic pistol equipped with a silencer. Articles of Incorporation for Renee Ltd., recipes for the manufacture of methamphetamine, chemicals, laboratory equipment, books and a purchase bid for phenylacetic acid on Renee Ltd. stationary also were found in the office trailer. After searching a horse trailer on the property, Simonson discovered chemicals and laboratory equipment. Officer also found various laboratory equipment and glassware in the main residence.

Agent Gary Ainsworth testified that the semi-automatic pistol traveled through interstate commerce and lacked a serial number. He stated that a target in Sturmoski's office trailer had been pierced by a .22-caliber bullet. During his testimony, Ainsworth also revealed that on July 14, 1990 he had investigated a suspected methamphetamine laboratory on the appellant's property that had burned. Finally, Ainsworth testified that Sturmoski previously had been convicted of a felony--possession with intent to distribute marijuana.

Sturmoski's sister-in-law, Jackie Sturmoski, testified that she lived on appellant's property from June 1989 to August 1990. She recalled detecting an odor similar to animal urine emanating from the garage that burned in July 1990. She also noticed laboratory glassware in the garage and stated that Sturmoski always carried a gun when he went to the garage.

During the trial, Frank Lucero was qualified as an expert in forensic chemistry. He reviewed the chemicals and equipment seized from the appellant and concluded that the only item Sturmoski lacked for the manufacture of methamphetamine was phenylacetic acid. Lucero determined that had phenylacetic acid been available the chemicals and equipment seized from the appellant would produce 3.8 pounds of methamphetamine.

Agent William Swierc was qualified as an expert in clandestine methamphetamine laboratories. Swierc testified that in only two or three laboratories out of approximately thirty he had investigated, firearms played no role in the operation of the laboratory. He testified that firearms normally were used in the operation of these clandestine laboratories to protect the investment in chemicals and equipment.

A jury returned a verdict of guilty on all six counts. After a sentencing hearing, the court sentenced Sturmoski to 135 months of imprisonment as to both Counts III and IV, to run concurrently. On Counts I and II, Sturmoski was sentenced to 120 months of imprisonment to run concurrently with each other and concurrently with the sentences imposed for Counts III and IV. The district court then sentenced appellant to two thirty-year terms of imprisonment for Counts V and VI to run consecutively to each other and to Counts I, II, III and IV.

II.

Sturmoski contends that the district court erred in failing to grant his motion to suppress the evidence discovered during the search because the search warrant affidavit fails to comply with Fourth Amendment requirements. Sturmoski argues that Deputy Simonson held himself out as an expert to the judge issuing the search warrant and then presented statements to the judge made by a confidential informant that Simonson must have known were false.

To challenge the search warrant, Sturmoski must show that Simonson's statement was both material and a deliberate falsehood or disregard of the truth. Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 2684, 57 L.Ed.2d 667 (1978). Sturmoski asserts that because Simonson was an expert in methamphetamine manufacturing, he must have known that statements made by informant # 2 and by Agent Schlagel's confidential source were false. Informant # 2 provided the following information:

A.W. (Sturmoski) had buried several 55 gallon drums of "meth oil" on the property at 237 90th St., S.W., and that A.W. was lacking chemicals and clean glassware for the final syntheses of methamphetamine.

Agent Schlagel's confidential source told Schlagel that "there was an underground tank on the property at 237 90th St., where the residents were storing waste and meth oil...." Sturmoski argues that Simonson could not have believed these statements because he made no effort to excavate the property and because it is also highly unlikely that someone would contaminate meth oil by mixing it with waste; furthermore, it is well known that clean glassware is not necessary for the final production of methamphetamine.

After reviewing the record, we hold that these statements were neither material to the issuance of the search warrant nor a deliberate falsehood. The record reveals that the team executing the search warrant examined the lot for a number of hours and could not discover any sign of recently disturbed ground. Thus, it would have been inappropriate for the team to excavate Sturmoski's entire four-acre lot. With regard to storing meth oil with waste and the glassware, Sturmoski's allegation alone is insufficient to demonstrate that Simonson's statements to the judge were either deliberately false or material to the issuance of the search warrant. The state district court judge had a wealth of information before him that justified the issuance of the search warrant.

Sturmoski also argues that the search warrant affidavit fails to establish probable cause. We evaluate informant information for probable cause in a search warrant affidavit under the "totality of the circumstances" test. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). Sturmoski bases this claim on the fact that neither Sergeant Rhem nor Simonson attempted to establish the veracity of the first confidential informant. However, there is no need for a declaration of the reliability of an informant when the informant's information is corroborated by other information. See United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971). Here, the record clearly demonstrates that the confidential information was corroborated by independent information.

Sergeant Rhem told Simonson that he had knowledge of independent information that confirmed informant # 1's information. In addition, informant # 1 made an admission against his own penal interest: he admitted to personal involvement in manufacturing methamphetamine in the past. Further, informant # 2 had observed a methamphetamine laboratory in a garage at 237 90th Street, S.W. during the summer of 1990. Informant # 2 also stated that "methamphetamine...