U.S. v. Underwood
| Decision Date | 22 April 2004 |
| Docket Number | No. 03-2716.,No. 03-1543.,No. 03-1982.,No. 03-2901.,03-1543.,03-2716.,03-2901.,03-1982. |
| Citation | 364 F.3d 956 |
| Parties | UNITED STATES of America, Plaintiff — Appellee, v. Bart Edward UNDERWOOD, Defendant — Appellant. United States of America, Plaintiff — Appellee/Cross-Appellant, v. Gayle Jean Steele, also known as Gayle Jean Gosnell, Defendant — Appellant/Cross-Appellee. United States of America, Plaintiff — Appellee, v. Duane Carl Carpenter, Defendant — Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Chip Lowe, argued, Urbandale, IA, for appellant Carpenter.
Keith E. Uhl, argued, Des Moines IA, for appellant Steele.
Paul D. Scott, argued, Des Moines, IA, for appellant Underwood.
Andrew H. Kahl, Asst. U.S. Atty., argued, Des Moines, IA (Shannon L. Olson and Richard L. Richards, Des Moines, IA, on the brief), for appellee.
Before MURPHY, HEANEY, and SMITH, Circuit Judges.
Bart Underwood, Gayle Steele, and Duane Carpenter were each convicted of conspiracy to manufacture methamphetamine. Carpenter was also convicted of manufacturing methamphetamine, endangering human life during the manufacture of methamphetamine, manufacturing methamphetamine within 1000 feet of a school, felon in possession of a firearm, possession of a firearm in furtherance of a drug trafficking crime, and possession of an unregistered short barreled shotgun. The district court1 sentenced Underwood to 140 months, Steele to 262 months, and Carpenter to life plus ten years. Underwood, Steele, and Carpenter appeal their convictions. Steele and Carpenter also raise sentencing issues, and the United States cross appeals the court's decision not to enhance Steele's sentence for endangering human life. After studying the extensive record, we affirm the judgments of the district court except for one of Carpenter's convictions which must be vacated because of a double jeopardy issue.
Bart Underwood, his girlfriend Gayle Steele, her brother Duane Carpenter, and several others manufactured methamphetamine at Carpenter's residence in Council Bluffs, Iowa. By August 2001, there were at least two to three one ounce methamphetamine cooks a week at Carpenter's house. The cooks continued until the defendants were apprehended by law enforcement in late November 2001. Carpenter would exchange methamphetamine for precursor materials and equipment to use in the cooks. He directed most of the cooks at the residence and possessed two firearms, one that he carried while supervising the cooks and a sawed off shotgun that he kept in the house to protect his methamphetamine operation. Steele and Underwood frequented the house and regularly participated in the cooks by peeling lithium batteries, popping pseudoephedrine pills from blister packages and crushing them, and "bubbling" the methamphetamine during the final stages of production. They also obtained chemicals and supplies for Carpenter's cooks and for their own. With the assistance of Underwood, Steele occasionally conducted her own cooks using Carpenter's equipment and then shared her batch with Carpenter.
On November 27, 2001 law enforcement agents searched Carpenter's residence pursuant to a warrant and uncovered the active methamphetamine lab on the second floor. They also discovered methamphetamine production byproducts, precursor chemicals, and equipment used to manufacture methamphetamine scattered throughout the house. This included pseudoephedrine, sulfuric acid, starter fluid, waste sludge materials containing anhydrous ammonia, and lithium. A single kerosene heater with an open heating element sat in the second floor foyer as the sole source of heat for the entire house; it was plugged into an extension cord running from the house next door. Because chemical fumes pervaded the house, the police ran a safety assessment and identified several potential hazards. There were apparent dangers at the site presented by exposure to chemicals, the mixing of dangerous chemicals such as hydrogen chloride gas and flammable fuel vapors, numerous potential sources of open flames, and three large dogs running loose in the house.
Six people were apprehended in the house during the search. Steele and Underwood were in a second floor bedroom, where waste from methamphetamine cooks was found on a TV tray near the bed, including jars with residue, used coffee filters, and salt. Christy O'Neal and Twyla Pike were found in another second floor room, and Franklin Freese was in the attic. After a second sweep of the house, the police discovered Carpenter in the attic with a loaded, unregistered short barrel shotgun.
A grand jury indicted Carpenter, Steele, Underwood, and O'Neal for conspiracy to manufacture methamphetamine, in violation of 21 U.S.C. § 846, and for manufacturing methamphetamine, in violation of 21 U.S.C. § 841(a)(1). Carpenter was also indicted for felon in possession, possession of a firearm in furtherance of a drug trafficking crime, and possession of a short barreled shotgun, in violation of 18 U.S.C. §§ 922(g)(1), 924(e)(1), 924(c)(1)(A), and 26 U.S.C. § 5861(d). A superceding indictment later added charges against each defendant for manufacturing drugs within 1000 feet of a school, and for endangering human life, in violation of 21 U.S.C. §§ 860 and 858.
Defendants filed several pretrial motions, including motions to suppress the evidence found in the November search and for a Franks hearing. Their motions were denied after a hearing.2 The court found that the defendants had not made a substantial preliminary showing that the warrant affidavit contained false statements made knowingly or intentionally or with reckless disregard for the truth. The court also concluded that the warrant affidavit sufficiently showed probable cause because it was based on information from a reliable informant and his tip was corroborated.
The trial of Carpenter, Steele, Underwood, and Freese began on September 20, 2002. Freese entered a guilty plea after four days. O'Neal had entered into a plea agreement before trial and testified against the remaining defendants. The jury returned guilty verdicts on October 8 against Steele, Underwood, and Carpenter for conspiracy to manufacture methamphetamine, and it found each responsible for 500 grams or more of a mixture or substance containing methamphetamine. The jury also convicted Carpenter of manufacturing methamphetamine, felon in possession of a firearm, possession of a firearm in furtherance of a drug trafficking crime, possession of an unregistered short barreled shotgun, endangering human life during the manufacture of methamphetamine, and manufacturing methamphetamine within 1000 feet of a school. Underwood and Steele were found not guilty of manufacturing methamphetamine, endangering human life during the manufacture of methamphetamine, and manufacturing methamphetamine within 1000 feet of a school. The district court denied defendants' motions for a new trial or judgments of acquittal, and each defendant was sentenced in a separate proceeding.
Underwood was sentenced to 140 months, and appeals his conviction. On his appeal, he challenges the denial of his motion to suppress, sufficiency of the trial evidence, denial of his posttrial motion for a new trial, and denial of requested jury instructions.
Steele was sentenced to 262 months. At her sentencing hearing, the district court denied her motions to compel the government to credit her substantial assistance and for a mitigating role reduction. Because the court found her criminal history category of III understated her prior offense conduct, it departed upward to category IV.3 The district court applied an enhancement for firearm possession which raised Steele's base offense level from 34 to 36, but it declined to apply an enhancement for endangering human life. On her appeal, Steele contests the denial of her suppression motion, the denial of a minor role adjustment, the enhancement for firearm possession, and the increase in her criminal history category. The government cross appeals, arguing that the district court should have applied a sentencing enhancement to increase Steele's offense level for endangering human life.4
Carpenter was sentenced to life imprisonment for his convictions of conspiracy, manufacturing, felon in possession, and manufacturing within 1000 feet of a school; concurrent sentences of ten years for possession of a short barreled shotgun and endangering human life; and a consecutive term of ten years for possession of a firearm in furtherance of a drug trafficking crime. He received enhancements for his role as a leader in the conspiracy and for endangering human life, and he was categorized as a career offender. He unsuccessfully sought a downward departure for overstatement of his criminal history. On his appeal, Carpenter challenges the denial of his suppression motion, the sufficiency of the evidence, and the constitutionality of the endangerment statute. He also raises a double jeopardy issue based on his convictions for manufacturing, manufacturing within 1000 feet of a school, and endangering human life. As to his sentence, he appeals the leadership role enhancement, the findings of drug quantity, and his designation as a career offender.
Defendants claim that their Fourth Amendment rights were violated by a search under an invalid warrant. They contend that the district court erred by not suppressing the evidence from the November search because no probable cause existed for the search warrant since it was based on information from an unreliable informant and a law enforcement official who misrepresented the underlying facts in violation of Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The denial of a motion to suppress is reviewed de novo with the underlying factual...
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