U.S. v. Williams

• Decision Date: 22 March 1993
• Docket Number: Nos. 91-30298,91-30299,s. 91-30298
• Citation: 989 F.2d 1061
• Parties: 37 Fed. R. Evid. Serv. 545 UNITED STATES of America, Plaintiff-Appellee, v. Jearold Kenneth WILLIAMS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. George ALLEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1061

989 F.2d 1061

37 Fed. R. Evid. Serv. 545

UNITED STATES of America, Plaintiff-Appellee, v. Jearold Kenneth WILLIAMS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. George ALLEN, Defendant-Appellant.

Nos. 91-30298, 91-30299.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Sept. 14, 1992.

Decided March 22, 1993.

Jay F. Lansing, Moses Law Firm, Billings, MT, Charles W. Elliott, Lozow Law Firm, Denver, CO, for defendants-appellants.

James E. Seykora, Asst. U.S. Atty., Billings, MT, for plaintiff-appellee.

Appeal from the United States District Court for the District of Montana.

Before: WRIGHT, FLETCHER and CANBY, Circuit Judges.

FLETCHER, Circuit Judge:

Jearold Williams and George Allen appeal, on various grounds, their convictions for conspiracy to manufacture and distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846 and 18 U.S.C. § 2, possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, and unlawful possession of essential chemicals in violation of 21 U.S.C. §§ 841(d)(1), 802(33) and 802(35) and 18 U.S.C. § 2. Williams and Allen also contend that the district court misapplied the Sentencing Guidelines. We affirm the convictions and sentences.

I. FACTS AND PROCEDURAL HISTORY

On November 24, 1990, the day after Jearold Williams shot and killed his adopted son, Mark Reitler, Glen Reitler, Mark's brother, confided to police that a trailer containing a methamphetamine lab which belonged to George Allen was stored on Williams' property in Fromberg, Montana. Glen, who admitted to having used drugs in the past, also told police that he had seen methamphetamine, or "crank," in the master bedroom of Williams' trailer home on the same property. Relying on this information, DEA agent Keith Aller obtained a search warrant for the Fromberg property, which was executed with help from state authorities. Because Glen had told police he was concerned for his safety, the affidavit supporting the warrant referred to him as "confidential informant" and did not explain his relationship to Williams.

Police seized 157 grams of methamphetamine and over a kilogram of marijuana from Williams' bedroom in the house trailer. A search of a second trailer on the property, which was padlocked and had to be forced open, uncovered glassware and supplies for a methamphetamine lab, including many of the chemicals required to manufacture methamphetamine. The glassware was wrapped in a Denver, Colorado newspaper, and a recent receipt from a Denver convenience store was found in a box in the trailer.

Agents forwarded the padlock that had been removed from the lab trailer to Denver, where DEA agents obtained a search warrant for the home of George Allen. They based their application on the evidence seized from the trailers on Williams' property and the information supplied by Glen Reitler. In Allen's house agents found a small scale and $8900 in cash. Allen consented to a search of his pickup truck, where agents discovered two keys that fit the padlock.

A grand jury returned an indictment against Williams and Allen charging violations of federal narcotics statutes. Both defendants pleaded not guilty. Prior to trial, Allen moved to suppress the evidence seized at his residence and to sever the trial. The court denied these motions, although it was agreed that the government would "stay away" from the underlying homicide--the subject of pending state charges against Williams--so as not to prejudice Allen. During trial, the court ruled admissible under rule 404(b) the testimony of a government witness, Larry Dreier, regarding drug transactions with Williams and Allen that fell outside the charged conspiracy. The court issued a cautionary instruction that the jury could not consider the testimony as evidence of Allen's character to engage in drug dealing. The instruction did not refer to Williams, however. Finally, at the close of trial, the court ruled that a number of incriminating, out-of-court declarations made by Williams and Mark Reitler to which various witnesses at trial had testified were admissible as statements "in furtherance of" the conspiracy.

Williams and Allen were convicted on all counts of the indictment and each was sentenced to 151 months in prison.

II. SEARCH WARRANTS

Both Williams and Allen challenge the validity of the warrants pursuant to which agents conducted the searches in Montana and Colorado. They contend primarily that the warrants were defective because the affidavits supporting them did not state that the informant was the brother of the recently deceased Mark Reitler, a fact which they assert would have affected the issuing officials' determination of probable cause.

We review a court's issuance of a search warrant for clear error and will uphold the warrant so long as the court had a "substantial basis" for concluding that the totality of the circumstances established probable cause. United States v. Bertrand, 926 F.2d 838, 841 (9th Cir.1991). A defendant can challenge a facially valid warrant when it contains deliberate or reckless omissions of facts that tend to mislead. United States v. Dozier, 844 F.2d 701, 705 (9th Cir.), cert. denied, 488 U.S. 927, 109 S.Ct. 312, 102 L.Ed.2d 331 (1988). Whether false statements or omissions are intentional or reckless is a factual finding reviewed under the clearly erroneous standard. Id.

The district court did not err in denying the motions for suppression. During the investigation of the homicide, several witnesses related that Mark Reitler had been heard arguing with Williams over a drug debt shortly before he was killed. Glen, whose identity was known to the police, was able to supply specific information about Williams' drug activities to the authorities, including the source and exact location and packaging of the methamphetamine in Williams' trailer. Glen's credibility as an informant was enhanced by his admission that he had used methamphetamine in the past. These facts, taken together, provided a substantial basis for the Montana warrant.

The Colorado warrant was based on the information from Glen. His reliability had been confirmed by the Montana search. The agents also had evidence discovered in the lab trailer which, consistent with Glen's story, indicated that it had recently arrived from Colorado. The totality of these circumstances amply supported the Colorado magistrate's finding of probable cause. ¹

None of the information in the supporting affidavits has been shown to be untrue. Nor is there any reason to believe that the warrants would not have been issued had Glen's identity as Mark's brother been known to the issuing officials. It was apparent from the information he supplied that Glen was an associate of Williams and involved to some extent in illegal drugs. As was noted by this court in United States v. Strifler, 851 F.2d 1197, 1201 (9th Cir.1988), cert. denied, 489 U.S. 1032, 109 S.Ct. 1170, 103 L.Ed.2d 228 (1989), "[i]t would have to be a very naive magistrate who would suppose that a confidential informant would drop in off the street with such detailed evidence and not have an ulterior motive. The magistrate would naturally have assumed that the informant was not a disinterested citizen." We conclude that the court did not err in holding that the failure to disclose Glen's identity did not render the affidavits misleading.

III. HEARSAY

Appellants argue that the district court erred in admitting various witnesses' testimony recounting statements made by Williams and Mark Reitler concerning their drug activities. ² The court ruled all of the challenged testimony admissible as nonhearsay under Fed.R.Evid. 801(d)(2)(E). The trial court's decision that the statements fell within the coconspirator hearsay exception must be upheld unless clearly erroneous. United States v. Andersson, 813 F.2d 1450, 1456 (9th Cir.1987). We will not reject the district court's factual findings unless we are " 'left with the definite and firm conviction that a mistake has been made.' " United States v. Zavala-Serra, 853 F.2d 1512, 1515 (9th Cir.1988).

We address first the statements made by Mark Reitler before his death concerning his drug-related activities. These came in through the testimony of Glen Reitler; Sandy Schillinger, Mark's live-in girlfriend; and Fred Winters, a friend of Mark's. They included:

1. Mark told Glen he wanted to borrow $1,000 from Glen to obtain marijuana from Williams. (Reporter's Transcript ("R.T.") at 606.)

2. Mark told Glen that Williams was going to Colorado to get marijuana from George Allen. (Id. at 609-10.)

3. Mark told Glen he was going to Denver with Williams to look for "the stuff." (Id. at 618.)

4. Mark told Glen that Williams and Allen would be taking a trip to look for a chemical with which to make crank. (Id. at 619-20.)

5. Mark asked Winters if he would like to buy some crank. (Id. at 679.)

6. Mark told Schillinger that he was angry with Williams because Williams hadn't treated him like a "partner." (Id. at 755.)

In ruling the above statements admissible, the district court did not explicitly find that Mark Reitler was a member of the Williams/Allen drug conspiracy, but such a finding is implicit in its determination that the statements could come in as statements in furtherance of the conspiracy. An individual need not be indicted to be considered a coconspirator for the purposes of rule 801(d)(2)(E). United States v. Everett, 692 F.2d 596, 601 (9th Cir.1982), cert. denied, 460 U.S. 1051, 103 S.Ct. 1498, 75 L.Ed.2d 930, and cert. denied, 460 U.S. 1053, 103 S.Ct. 1502, 75 L.Ed.2d 932 (1983).

There can be no doubt that Mark was a participant in the conspiracy. Mark was killed in a dispute with Williams over drug monies. At trial, his girlfriend described the drug business he ran from...