U.S. v. Wacker

Citation72 F.3d 1453
Decision Date26 December 1995
Docket Number94-3007 and 94-3024,94-3002,Nos. 93-3372,94-3001,93-3375,93-3385,s. 93-3372
Parties43 Fed. R. Evid. Serv. 280 UNITED STATES of America, Plaintiff-Appellee, v. Lewis Theodore WACKER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Leroy Allen COOLEY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. John Lee WACKER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Edith Faye WACKER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Susan Mary BOYLE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Michael L. LIPP, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Perl Glen VAN PELT, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Michael L. Lewis, Topeka, Kansas, for Defendant/Appellant Lewis Theodore Wacker.

James G. Chappas, Topeka, Kansas, for Defendant/Appellant Leroy Allen Cooley.

F.G. Manzanares, Topeka, Kansas, for Defendant/Appellant John Lee Wacker.

James P. Moran, Assistant Federal Public Defender, Denver, Colorado (Michael G. Katz, Federal Public Defender, Denver, Colorado, with him on the brief), for Defendant/Appellant Edith Faye Wacker.

Edward G. Collister, Jr. of Collister & Kampschroeder, Lawrence, Kansas, for Defendant/Appellant Susan Mary Boyle.

Susan M. Hunt, Kansas City, Missouri (John P. O'Connor, Kansas City, Missouri, with her on the brief), for Defendant/Appellant Michael L. Lipp.

Stephen W. Kessler, Topeka, Kansas, for Defendant/Appellant Perl Glen Van Pelt.

Gregory G. Hough, Assistant United States Attorney, Topeka, Kansas (Randall K. Rathbun, United States Attorney, with him on the brief), for Plaintiff/Appellee.

Before EBEL and HENRY, Circuit Judges, and COOK *, District Judge.

EBEL, Circuit Judge.

Appellants were charged in a fifteen-count superseding indictment with the commission of multiple drug trafficking and weapons offenses arising out of an extensive marijuana distribution conspiracy. Appellant Edith Wacker entered a guilty plea to two of those counts and was sentenced to a term of imprisonment. Edith Wacker now appeals her sentence, arguing that the district court miscalculated the drug quantity involved in her offense conduct, and improperly enhanced her sentence based on her role in the offense. The remaining defendants--Perl Van Pelt, Susan Boyle, John Wacker, Lewis Wacker, Leroy Cooley and Michael Lipp--pleaded not guilty to the charges and were subsequently convicted after a combined jury trial. These defendants now challenge the sufficiency of the evidence for their convictions and appeal the district court's refusal to grant a mistrial based on improper juror communications. They also assert individually a number of additional trial errors. Finally, Lipp, Van Pelt and Cooley each appeal their sentences. We have jurisdiction under 28 U.S.C. Sec. 1291.

I.

On January 27, 1993, a grand jury returned a fifteen count superseding indictment against the defendants. Each defendant was charged with conspiracy to possess with intent to distribute approximately 2,000 pounds of marijuana, in violation of 21 U.S.C. Sec. 846 (Count 1); four counts of possession with intent to distribute marijuana, in violation of 21 U.S.C. Sec. 841(a)(1) (Counts 4, 5, 6, and 11); 1 and two counts of the use of a firearm in connection with a drug trafficking offense or conspiracy, in violation of 18 U.S.C. Secs. 924(c)(1) and (2) (Counts 7 and 12). Each count was also charged on an aiding and abetting theory, pursuant to 18 U.S.C. Sec. 2.

Lipp was also charged with one additional count of using a firearm in relation to a drug trafficking offense (Count 2) and three counts of possession of a firearm by a convicted felon, in violation of 18 U.S.C. Sec. 922(g) (Counts 3, 10 and 15). Van Pelt was charged with two counts of possession of a firearm by a convicted felon (Counts 8 and 13), as was Cooley (Counts 9 and 14).

Prior to trial, Edith Wacker entered into a plea agreement with the United States Attorney. Pursuant to this agreement, Edith Wacker pleaded guilty to one count of conspiracy to possess with the intent to distribute approximately 2,000 pounds of marijuana in violation of 21 U.S.C. Sec. 846 (Count 1), and one count of unlawful use of a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. Sec. 924(c) (Count 7). The remaining charges against Edith Wacker were dropped pursuant to the agreement. The other codefendants entered not guilty pleas.

At the trial of these six codefendants, persuasive evidence showed that the defendants operated a large marijuana harvesting and distribution operation on the farm of Theo and Esther Wacker (parents of defendants Edith, John and Lewis Wacker), located in Lincoln County, Kansas, and at the Van Pelt residence in Perry, Kansas. Police investigation began on July 20, 1990, when a confidential informant told Officer Larry Beagley of the Ellsworth Police Department that John, Lewis and Edith Wacker were harvesting marijuana on the Wackers' farm. Officer Beagley conducted surveillance of the Wacker farm on four separate occasions between August 29 and September 10, 1990. Each time, he observed marijuana plants growing on a separate parcel of property owned by Sidney Wacker, which property was known among the parties as "Down Yonder." 2 Beagley relayed this information to the Kansas Bureau of Investigation ("KBI").

On September 8, 1990, the KBI Crime Hot Line received a phone call from an anonymous woman who stated that a marijuana harvesting, drying and processing operation was being conducted at the Wacker farm. In response to Beagley's information, KBI Special Agent Rick Atteberry conducted aerial surveillance of the Wacker farm on September 10, 1990, and observed marijuana plants growing in a tree line adjacent to some outbuildings.

At approximately 12:18 a.m. on September 16, 1990, Trooper Mike Weigel of the Kansas Highway Patrol conducted a traffic stop of a pickup truck with a camper top driven by appellant Lipp. Lewis Wacker's wife, Carla Wacker, ("Carla") was a passenger in the truck, which was registered to Susan Boyle and Edith Wacker. Trooper Weigel issued Lipp a warning for a defective registration tag light, then asked to search the truck for guns or contraband. Lipp consented. Weigel searched the passenger compartment and discovered a set of brass knuckles, a large box of trash bags, two corn knives, a roll of rope, and two rolls of duct tape. A search of the rear camper shell of the truck yielded a bag containing a 9 mm pistol; a pair of gloves smelling of fresh cut marijuana; a machete; and a white paper bag containing marijuana. Lipp and Carla were placed under arrest and taken into custody. 3

Trooper Weigel then searched Carla's purse, finding a spoon with white residue and some white powder that was later found to be methamphetamine. In exchange for a grant of immunity, Carla agreed to serve as an informant for the KBI. Carla told government authorities that she, Lewis Wacker, Edith Wacker, Lipp, Van Pelt, Boyle and Cooley were involved in harvesting marijuana on the Wacker farm, and that at that time they were in the process of harvesting approximately 1,000 pounds.

Based on Carla's information that Van Pelt was going to be bringing marijuana into the Theo Wacker residence on the Wacker farm, Officer Beagley and KBI agents conducted further surveillance of the farm on September 16, 1990. At about 9:55 a.m., Beagley observed a Suburban belonging to Van Pelt and Boyle arrive at the farm and drive into a metal shed on the property. About thirty minutes later the Suburban left the shed and drove into the "Down Yonder" property where it disappeared into a tree-lined area for approximately fifteen minutes. KBI agents returned to the spot that evening and discovered six plastic trash bags containing processed marijuana. The Suburban returned to the shed on the Wacker farm at about 10:50 a.m., at which point Officer Beagley saw a fire burning and several people taking objects out of the shed and tossing them into the fire. He tentatively identified Lewis Wacker as one of the participants. John and Lewis Wacker later admitted that the conspirators were burning between 300 and 700 pounds of processed marijuana because they feared, correctly, that they were under police surveillance.

Around noon on the following day, September 17, KBI agents stopped the Suburban and found Boyle, Van Pelt and Cooley inside. The three were ordered out of the vehicle by the agents, who conducted pat down searches and discovered large amounts of cash in the possession of each suspect. The agents asked for and received permission to search the vehicle, and conducted a cursory search. The agents saw Boyle's open purse, in which a large wad of folded currency was visible, on the rear seat of the vehicle. The agents obtained a search warrant, and searched the contents of the purse and the trailer attached to the Suburban. The purse was found to contain, among other things, safe deposit box keys and several envelopes containing thousands of dollars in cash. A marijuana plant was found in the trailer. Van Pelt, Boyle and Cooley were placed under arrest. During routine interrogation, Van Pelt volunteered incriminating statements to police. He informed one agent that he had intended to harvest marijuana but had not yet done so, and if the agents had stopped him two days later they would have found marijuana. He told another police officer that marijuana could not have been found in the vehicle because he had "made damn sure there wasn't anything there."

KBI agents executed a search warrant for the Wacker farm on September 17, 1990. During the search, the agents seized numerous incriminating items, including: six trash bags of marijuana; 34 marijuana plants; a .22 caliber handgun; the "front sheets" used...

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