U.S. v. Westbrook, s. 89-5341

• Decision Date: 21 February 1990
• Docket Number: Nos. 89-5341,89-5345,s. 89-5341
• Citation: 896 F.2d 330
• Parties: 29 Fed. R. Evid. Serv. 1048 UNITED STATES of America, Appellee, v. James Darrell WESTBROOK, a/k/a Jimmy, Appellant. UNITED STATES of America, Appellee, v. Shelia Yvonne WESTBROOK, a/k/a Shelia Yvonne Thorson, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 330

896 F.2d 330

29 Fed. R. Evid. Serv. 1048

UNITED STATES of America, Appellee, v. James Darrell WESTBROOK, a/k/a Jimmy, Appellant.

UNITED STATES of America, Appellee, v. Shelia Yvonne WESTBROOK, a/k/a Shelia Yvonne Thorson, Appellant.

Nos. 89-5341, 89-5345.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 17, 1989.

Decided Feb. 21, 1990.

Kathleen Caldwell, Sioux Falls, S.D. for appellant, Shelia Yvonne Westbrook.

Timothy J. Wilka, Sioux Falls, S.D., for appellant, James Darrell Westbrook.

Dennis R. Holmes, Pierre, S.D., for appellee.

Before LAY, Chief Judge, and ARNOLD, Circuit Judge, and McMILLAN, ^* District Judge.

McMILLAN, District Judge.

James and Shelia Westbrook were convicted of (1) conspiring to possess and distribute d,l-amphetamine (in violation of 21 U.S.C. Secs. 841 and 846); (2) conspiring to manufacture d,1-amphetamine (in violation of 21 U.S.C. Secs. 841 and 846); and (3) manufacturing d,1-amphetamine (in violation of 21 U.S.C. Sec. 841).

On appeal, James Westbrook argues that the trial court ¹ erred in admitting evidence of events that occurred in 1984 and in early 1985; denying his motion for a mistrial; admitting certain testimony identifying the substance at issue as amphetamine; and refusing to read a proposed jury instruction. Shelia Westbrook contends that the trial court improperly refused to sever her trial from that of her co-defendant, and that there was insufficient evidence to support the jury's verdict.

The court affirms the convictions of James and Shelia Westbrook.

I. BACKGROUND

James and Shelia Westbrook were living in the area of Dallas, Texas in 1984. Shelia at that time was James's girlfriend; James worked as a plumber and fixed up old cars. In late 1984, James became acquainted with a group of men who had come to Texas from South Dakota: Tom Foley, Greg and Steve Hagedorn, and LeWayne Matthies. On several occasions in late 1984 and early 1985, James sold amphetamine to Tom Foley and Steve Hagedorn, who took the drug to South Dakota for distribution. Other members of the South Dakota group used James's amphetamine. Shelia was present at one spring 1985 transaction.

James Westbrook also was acquainted with a Texan named Ray Tyler, who knew how to manufacture amphetamine. In the early fall of 1985, James, Shelia and Tyler drove to Sioux Falls, South Dakota, where they met Tom Foley and Greg Hagedorn. Over the next three days they manufactured, or "cooked," one pound of amphetamine. Shelia assisted in the manufacturing process and helped weigh and package the drug. James distributed some of the amphetamine. After the "cook" was completed, the equipment was loaded into a U-Haul with Shelia's help and was placed in a rented storage unit. The rental agreement was in Shelia's name.

James and Shelia drove back to Texas, but later that year returned to South Dakota with Ray Tyler for another "cook." The equipment was taken out of the storage unit, and two pounds of amphetamine were manufactured. During most of this "cook," Shelia stayed at the home of Jan Hagedorn, Steve Hagedorn's wife. For two days, however, Shelia was absent from the home, and when she returned she brought a baggie of sticky amphetamine, which she shared with Jan. Shelia also explained the manufacturing process to Jan. At the completion of this "cook," James sold some of the amphetamine to Tom Foley, who distributed it in the Sioux Falls area. James and Shelia returned to Texas.

James later had a disagreement with the other members of the group, and their association was broken off. Tyler continued to manufacture amphetamine with the South Dakota residents, always using the same process. Their last "cook" occurred in December 1987. The substance manufactured on this occasion was seized by law enforcement officers, analyzed at a laboratory, and found to be d,l-amphetamine. Foley, Tyler, and the Hagedorns pleaded guilty to charges arising from their involvement in manufacturing and distributing amphetamine.

On December 2, 1988, James and Shelia Westbrook were charged with violating federal narcotics laws in connection with their 1984 and 1985 activities. The indictment charged them with conspiring to possess, distribute and manufacture d,l-amphetamine beginning in fall of 1984, and manufacturing d,l-amphetamine in October 1985 and in December 1985. James was charged separately with possessing and distributing d,l-amphetamine in the spring of 1985 and in October 1985. James and Shelia pleaded not guilty to these charges.

Prior to trial, the government dismissed the charge against both defendants of manufacturing amphetamine in October 1985. Also prior to trial, Shelia filed a motion to sever her trial from that of James Westbrook. The court denied her motion. Immediately prior to jury selection, Shelia renewed her motion, and the court again denied her request. Shelia's counsel did not renew her motion for severance at any time thereafter.

After a jury trial, Shelia and James Westbrook were found guilty of conspiring to possess, distribute and manufacture amphetamine, and manufacturing amphetamine. James was acquitted of the other charges against him. Shelia was sentenced to five years imprisonment for each offense, with the sentences to be served concurrently. James was sentenced to 15 years imprisonment for each offense, with his sentences also to be served concurrently.

II. ISSUES

A. Admissibility of Evidence of Events Occurring in 1984 and Early 1985

Prior to trial, James Westbrook's counsel made a motion to suppress evidence of all transactions that took place in Texas. The court declined to rule on this motion before trial, and stated that it would rule on objections made at the time the challenged evidence was offered. At trial, several witnesses testified about drug transactions that took place in Texas between James Westbrook and other individuals. James's counsel did not object to any of this evidence as being outside the scope of the crimes with which he was charged. Two government witnesses testified that these transactions occurred before any plan or conspiracy had begun. Over James's objection, testimony was also admitted that James had brought a handgun with him to a spring, 1985 drug transaction at LeWayne Matthies' trailer home.

James alleges that the trial court improperly admitted evidence of events that occurred in Texas in late 1984 and early 1985, before the first "cook" in South Dakota. James contends that this evidence was not relevant to prove the existence of the conspiracy or his participation in it because, as the government's own witnesses testified, these events occurred before the formation of any conspiracy. He argues instead that the Texas transactions are "other bad acts" whose admissibility is governed by Fed.R.Ev. 404(b), but that the jury was not given any limiting instructions to this effect.

The court first notes that no objection was raised at trial regarding admission of evidence of the Texas transactions. In this circumstance, James Westbrook cannot now claim that admission of this evidence was reversible error. United States v. Wagoner, 713 F.2d 1371, 1376 (8th Cir.1983); United States v. Price, 464 F.2d 1217, 1218-19 (8th Cir.), cert. denied 409 U.S. 1040, 93 S.Ct. 522, 34 L.Ed.2d 489 (1972). This court can therefore only consider whether admission of evidence of the Texas transactions was so prejudicial as to amount to plain error. United States v. Wagoner, 713 F.2d at 1376.

Evidence of other bad acts or crimes is not admissible to prove character, but may be admitted "for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Fed.R.Ev. 404(b). If such evidence is allowed, the trial court must specify under which clause of Rule 404(b) it is being admitted, and should instruct the jury on the limited purpose for which it may be considered. United States v. Harvey, 845 F.2d 760, 762 (8th Cir.1988); United States v. Cuch, 842 F.2d 1173, 1176 (10th Cir.1988). However, evidence which is probative of a crime with which a defendant is charged, and not solely of some other uncharged crimes, is not evidence of "other bad acts." United States v. Cerone, 830 F.2d 938, 948 (8th Cir.1987), cert. denied 486 U.S. 1006, 108 S.Ct. 1730, 100 L.Ed.2d 194 (1988); United States v. DeLuna, 763 F.2d 897, 913 (8th Cir.1985); United States v. Caspers, 736 F.2d 1246, 1249 (8th Cir.1984).

Count IV of the indictment charged James Westbrook with possessing and distributing amphetamine "in or about Spring 1985." Testimony that James sold amphetamine in the spring of 1985 is highly relevant to whether he committed this offense and is not introduced as evidence of "other bad acts." Even though the jury ultimately acquitted James of this count, the government still had the right to introduce evidence of his conduct in an attempt to prove that he was guilty of this charge. United States v. Caspers, 736 F.2d at 1249.

Counts I and II of the indictment charged James with conspiracy to possess, distribute, and manufacture amphetamine "[c]ommencing in the Fall of 1984 and continuing through the date of this indictment, in the State and District of South Dakota." The existence of a conspiracy is a legal issue that the government had the burden of establishing to the jury. Opinion testimony that the conspiracy did not begin until late 1985 did not foreclose the government from introducing evidence that the conspiracy in fact began at the time that James began to associate with the South Dakota group. Evidence showed that James became acquainted with the South Dakota residents beginning in late 1984 and on several occasions sold them amphetamine, which in turn was distributed in South Dakota. These transactions very closely preceded trips made by James, Shelia and Ray Tyler to South Dakota, where the Texans met the same group of South Dakota residents and proceeded to manufacture...