U.S. v. Wagner

• Decision Date: 17 October 1989
• Docket Number: 88-2614,Nos. 88-2613,s. 88-2613
• Parties: UNITED STATES of America, Appellee, v. Michael WAGNER, Appellant. UNITED STATES of America, Appellee, v. Robert S. WAGNER a/k/a John Robert Wagner, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1090

884 F.2d 1090

UNITED STATES of America, Appellee, v. Michael WAGNER, Appellant.

UNITED STATES of America, Appellee, v. Robert S. WAGNER a/k/a John Robert Wagner, Appellant.

Nos. 88-2613, 88-2614.

United States Court of Appeals Eighth Circuit.

Submitted April 10, 1989.

Decided Sept. 8, 1989.

Rehearing Denied Oct. 17, 1989.

Jeff H. Watson, Springdale, Ark., for Michael Wagner.

Stephen L. Taylor, Springdale, Ark., for Robert Wagner.

William Cromwell, Fort Smith, Ark., for appellee.

Before BOWMAN and WOLLMAN, Circuit Judges, and HENLEY, Senior Circuit Judge.

BOWMAN, Circuit Judge.

Robert and Michael Wagner appeal their convictions for criminal activity involving methamphetamine. We affirm.

The Wagner brothers were arrested May 6, 1988, after an eighteen-month investigation. In late 1987, Robert Wagner purchased a large quantity of precursor chemicals, which were later seized in New Mexico by Drug Enforcement Administration officials. Robert Wagner, on behalf of W & W Painting, again ordered precursor chemicals and laboratory glassware on March 16, 1988, which were delivered to him by United Parcel Service at a rural route address in Fayetteville, Arkansas. On April 5, 1988, Robert Wagner used an alias to order more glassware and chemicals. Robert picked up those items at a Yellow Freight depot in Springdale, Arkansas on May 3, 1988, again using an alias. Drug task force personnel followed Robert from that depot to Michael's leased residence at 27 East Rock Street in Fayetteville. They observed the chemicals and glassware being unloaded from a truck and taken into the residence. On May 5, 1988, Robert ordered a glass adaptor, necessary for the manufacture of methamphetamine and requested that it be delivered the next day by UPS to the Rock Street address.

The May 6, 1988 delivery of the glass adaptor was made by a UPS delivery man and a state police officer, Doug McAllister, who posed as a UPS employee. The two men were met in the yard by Michael, who agreed to accept the C.O.D. delivery. Michael entered the house to write a check in payment for the delivery, and the two men followed. Inside the house, Officer McAllister detected a strong chemical odor that he associated with the manufacture of methamphetamine. Following the departure of the delivery men, Robert and another brother, Paul, were observed loading into a pickup truck a yellow footlocker and the package that had just been delivered, and driving away from the house.

Both the Rock Street residence and the truck were searched that same day pursuant to search warrants issued by an Arkansas state court judge, resulting in the seizure of chemicals, glassware, a one-page "recipe" for the manufacture of methamphetamine, and a firearm. In addition to Michael and Robert, police also arrested Paul Wagner and Michael's secretary, Margaret Snider. All four defendants were tried together on a one-count indictment charging that they "together with others, and aiding and abetting each other, knowingly and intentionally did attempt to manufacture methamphetamine" in violation of 21 U.S.C. Secs. 841(a)(1), 846 (1982), and 18 U.S.C. Sec. 2 (1982). After the government had presented its case, the District Court ¹ entered a judgment of acquittal in favor of Margaret Snider. The case against the three Wagner brothers was submitted to the jury, which returned verdicts of guilty against Michael and Robert and of not guilty as to Paul Wagner. These appeals followed.

I.

Michael and Robert Wagner first argue that the evidence seized in the May 6, 1988 searches of the house and truck should have been suppressed. They contend that the search warrants were issued upon information gleaned from Officer McAllister's initial warrantless entry into the house, gained by his deception in posing as a UPS employee, and that because the legality of the search warrants was thereby tainted, the evidence seized should have been suppressed as the fruit of an illegal search. We find no merit in this argument.

First, we agree with the District Court that the search warrants were supported by ample probable cause apart from Officer McAllister's detection of a strong chemical smell inside Michael's house, which was the sole additional information gained by his entry into the house. The four-page affidavit upon which the warrants were issued outlined in detail the eighteen-month investigation that had led to the controlled delivery made earlier that morning, and traced the route of the chemicals and glassware to the house on Rock Street. ² We hold that the information in the affidavit, even omitting Officer McAllister's detection of a strong chemical smell inside the house, provided the issuing judge a substantial basis for concluding that probable cause existed to believe that contraband or evidence of a crime would be found in the house on Rock Street and later in the pickup truck. See Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983).

Second, even if the probable cause determination had depended on the information gleaned from Officer McAllister's entry, we would not find the warrant constitutionally infirm. In Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966), the Supreme Court held that the Fourth Amendment does not categorically prohibit a law enforcement agent from gaining entry into private homes by misrepresenting his identity. As we explained in United States v. Shigemura, 682 F.2d 699 (8th Cir.1982), cert. denied, 459 U.S. 1111, 103 S.Ct. 741, 74 L.Ed.2d 962 (1983), one who consents to an undercover agent's entry into his house "has no legally enforceable expectation that [the agent] is not an undercover police officer." Id. at 706.

After reviewing the relevant law with regard to warrantless entries gained by ruse, the District Court concluded that Officer McAllister's entry did not violate the Fourth Amendment. See Criminal Suppression Hearing Transcript at 52-53. That conclusion was based on an implicit finding, which on this record we cannot say is clearly erroneous, that Michael Wagner, believing Officer McAllister to be a delivery person, consented to his entry. See United States v. Turbyfill, 525 F.2d 57, 59 (8th Cir.1975) (consent need not be expressed in words; it may be inferred from a person's conduct under the circumstances). ³ Accordingly, we conclude that the warrants were not tainted by any illegality and that the District Court therefore properly declined to suppress the evidence seized in the May 6, 1988 searches.

II.

Both appellants argue that the evidence introduced at trial was insufficient to support their convictions. As a corollary to this argument, appellants contend that the District Court failed to instruct the jury properly as to what must be proved to convict on an attempt charge. We address first the argument challenging the District Court's instructions, and then turn to an examination of the evidence supporting the convictions.

In Instruction No. 10, the District Court articulated the elements of attempted manufacture of methamphetamine as:

One, that a defendant intended to commit the crime of manufacture of methamphetamine; and,

Two, that on or about May 6, 1988, a defendant intentionally carried out some act which was a substantial step toward the commission of the crime of manufacturing methamphetamine.

The Court's Instruction No. 11 explained the "substantial step" element:

A substantial step, as used in the previous instruction, must be something more than mere preparation, yet may be less than the last act necessary before the actual commission of the substantive crime. In order for behavior to be punishable as an attempt, it need not be incompatible with innocence, yet it must be necessary to the consummation of the crime and be of such a nature that a reasonable observer, viewing it in context could conclude beyond a reasonable doubt that it was undertaken in accordance with a design to violate the statute. Crimes such as attempt to manufacture methamphetamine require a defendant to engage in numerous preliminary steps which brand the enterprise as criminal.

Appellants complain that the District Court should have defined the second element of attempt as "conduct constituting a 'substantial step' towards the commission of the substantive offense which strongly corroborates the actor's criminal intent." See United States v. Joyce, 693 F.2d 838, 841 (8th Cir.1982). Appellants contend that the omission of the "strongly corroborates" language significantly changes the character of the crime, and that if the instruction had included that language the jury here probably would not have reached guilty verdicts. We disagree.

A criminal defendant "is not entitled to a particularly worded instruction where the instructions given by the trial judge adequately and correctly cover the substance of the requested instruction." United States v. Manning, 618 F.2d 45, 48 (8th Cir.1980). Moreover, the District Court has "wide discretion in determining the appropriate jury instructions," and its choices of particular instructions may be reversed only for an abuse of discretion. See Shigemura, 682 F.2d at 704-05. The Instruction 11 language requiring the jury to find beyond a reasonable doubt that the step was taken "in accordance with a design to violate the statute" conveys substantially the same idea as the "strongly corroborates" language that appellants requested. ⁴ Moreover, any linguistic formulation of the "substantial step" element serves merely as a guidepost: "whether a defendant's conduct amounts to a 'substantial step' is necessarily dependent on the particular factual circumstances in the case at hand." United States v. Mazzella, 768 F.2d 235, 240 (8th Cir.), cert. denied, 474 U.S. 1006, 106 S.Ct. 528, 88 L.Ed.2d 460 (1985). Considering the particular circumstances of the present case, we are convinced that the instructions given by the District Court adequately and...