United States v. Wells

• Decision Date: 14 February 2013
• Docket Number: No. 12–1430.,12–1430.
• Citation: 706 F.3d 908
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Michael Joe WELLS, also known as Buster Wells, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

706 F.3d 908

UNITED STATES of America, Plaintiff–Appellee

v.Michael Joe WELLS, also known as Buster Wells, Defendant–Appellant.

No. 12–1430.

United States Court of Appeals, Eighth Circuit.

Submitted: Nov. 16, 2012.

Filed: Feb. 14, 2013.

John M. Albright, argued and on the brief, Poplar Bluff, MO, for Appellant.

Timothy J. Willis, Special AUSA, argued and on the brief, Cape Girardeau, MO, for Appellee.

Before RILEY, Chief Judge, WOLLMAN and MELLOY, Circuit Judges.

WOLLMAN, Circuit Judge.

A jury convicted Michael Wells of one count of conspiring to manufacture 50 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) and 846, and seven counts of possessing pseudoephedrine with the intent to manufacture methamphetamine, in violation of 21 U.S.C. § 841(c)(1). The district court ¹ sentenced Wells to 267 months' imprisonment. We affirm the convictions and the sentence.

I.

In 2009, law enforcement officers received information that Wells was manufacturing methamphetamine at his home in Poplar Bluff, Missouri.² Officers obtained pseudoephedrine purchase logs that showed that from January 2008 to May 2009, Wells, his wife Tonya, and his adult daughter Mandy had purchased a large quantity of pseudoephedrine in suspicious patterns.³

On August 26, 2009, officers went to Wells's residence to execute an arrest warrant for him. While outside, the officers heard an explosion and saw a flash inside the residence. The officers entered the residence and found Wells in the kitchen, bent over the sink with the water running. A throw rug was on fire. The officers extinguished the fire and secured Wells, who had suffered minor burns on his chest. A search of the kitchen revealed a partially melted plastic soda bottle and a funnel, both of which are commonly used in the “shake and bake” method (in which the ingredients are placed in a soda bottle and then agitated) of manufacturing methamphetamine. The officers believed that Wells had dumped the contents of an active shake and bake methamphetamine laboratory down the kitchen sink, resulting in the explosion that singed his chest and ignited the throw rug.

At trial, Mandy testified that Tonya and Wells had asked her to purchase pseudoephedrine pills. Tonya asked Mandy to purchase pseudoephedrine pills for her shortly after she and Mandy began using methamphetamine together in late 2007 or early 2008. In exchange for methamphetamine, Mandy purchased pseudoephedrine for Tonya on at least six occasions. She also purchased pseudoephedrine pills for Wells approximately six times. Wells usually gave her money to buy the pills, which she typically purchased by traveling to neighboring towns. Mandy also testified that Wells gave her methamphetamine on several occasions.

The jury heard testimony that Wells had pleaded guilty in 2001 to attempting to manufacture methamphetamine after policepulled his car over and discovered numerous items used in the manufacture of methamphetamine, including pseudoephedrine.

The government called pharmacists to lay the foundation for the admission of pseudoephedrine purchase logs. The pharmacists explained that to purchase pseudoephedrine pills, a customer must present a government-issued photograph identification card. The pharmacy technician then records the date and time of the sale, the quantity of pseudoephedrine pills purchased, and the purchaser's name, address, and identification card or driver's license number. To complete the sale, the customer must sign a pseudoephedrine purchase log. The pharmacists testified that it was the practice of their employers to log pseudoephedrine purchases and that the logs were retained to comply with federal law. The district court admitted the pseudoephedrine logs over Wells's objection.

Lynda Hartwick, a forensic document examiner, testified that she had examined known samples of Wells's signature and compared them with pseudoephedrine logs that purported to bear Wells's signature. Hartwick stated that it was “highly probable” that the signatures were by the same author.

The government called Larry Gregory, a special agent with the Drug Enforcement Agency (DEA), and an expert in the field of clandestine methamphetamine laboratories. Gregory examined the pseudoephedrine logs pertaining to the Wells family and identified suspicious patterns. For example, Mandy purchased pseudoephedrine pills from two different pharmacies on the same day, Tonya and Wells purchased pseudoephedrine pills from the same pharmacy within minutes of one another on at least six occasions, the Wells family purchased a significant amount of pseudoephedrine pills within short periods of time, and purchased the pills from pharmacies far from their residence in Poplar Bluff. From January 2008, to May 2009, the Wells family purchased a total of 290.88 grams of pseudoephedrine. Over Wells's objection, Gregory testified that the patterns he identified in the pseudoephedrine logs were consistent with someone who was purchasing pseudoephedrine pills for use in the manufacture of methamphetamine.

The jury also heard testimony from the law enforcement officers involved with Wells's August 2009 arrest. The officers testified about their familiarity with the shake and bake method of manufacturing methamphetamine and the potential for explosions or flash fires associated with this method.

Robert Kreft, a senior forensic chemist with the DEA, testified as an expert in the area of clandestine methamphetamine laboratory science. Kreft had worked as a chemist for the DEA for 36 years, had received training concerning how to determine the manufacturing capacity of a clandestine methamphetamine laboratory, and had experience doing so. Kreft testified that pseudoephedrine is commonly used in the manufacture of methamphetamine. He played a laboratory-prepared video for the jury that illustrated the shake and bake method of manufacturing methamphetamine. Kreft explained that the explosive nature of the shake and bake method makes it dangerous and stated that pouring the contents of an active shake and bake laboratory down the sink could trigger an explosion or flash fire. He reported that the maximum theoretical yield for methamphetamine manufactured from pseudoephedrine was 92 percent, but that an individual manufacturing methamphetamine in a clandestine laboratory would likely have a yield of from 20 to 80 percent, depending on the individual's skill and other factors. Kreft explained that an experienced methamphetamine cook will have a higher yield as a result of having refined his or her technique. He testified that it would be “very reasonable” for an experienced methamphetamine cook using the shake and bake method to obtain a yield of 50 percent of the theoretical maximum yield of 92 percent.

The jury found Wells guilty of all eight counts charged in the second superseding indictment. The district court denied Wells's motions for judgment of acquittal and a new trial. Wells's presentence report recommended a two-level leadership enhancement under United States Sentencing Guidelines (Guidelines) § 3B1.1(c), and a three-level enhancement under Guidelines § 2D1.1(b)(13)(C)(ii) because the offense involved the manufacture of methamphetamine and created a substantial risk of harm to human life. Over Wells's objections, the district court applied the enhancements and imposed the earlier-described sentence.

II.

A. Evidentiary Issues

Wells argues that the district court erred by admitting the pseudoephedrine logs and certain portions of Gregory's testimony. “We review a district court's decision to admit evidence over objection for abuse of discretion.” United States v. Johnson, 535 F.3d 892, 895 (8th Cir.2008).

1. Pseudoephedrine Logs

Wells argues that the admission of the pseudoephedrine logs violates the Confrontation Clause of the Sixth Amendment, citing Melendez–Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). Melendez–Diaz held that the admission of laboratory reports via “certificates of analysis” violated the Confrontation Clause because the certificates fell within the “class of testimonial statements” described in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Melendez–Diaz, 557 U.S. at 309–310, 129 S.Ct. 2527. In United States v. Mashek, 606 F.3d 922 (8th Cir.2010), we rejected the same argument made here. We held that Melendez–Diaz did not preclude the admission of pseudoephedrine logs because they constituted non-testimonial business records under Federal Rule of Evidence 803(6). Mashek, 606 F.3d at 930. The same analysis applies here, and the district court thus properly admitted the logs.

2. Gregory's Testimony

Wells argues that the district court abused its discretion when it admitted special agent Gregory's testimony that the pseudoephedrine logs showed patterns consistent with the purchase of pseudoephedrine for the purpose of manufacturing methamphetamine. Specifically, Wells argues that the testimony was inadmissible under Federal Rule of Evidence 704(b), which precludes an expert from testifying as to “whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged [.]” “Testimony that, when combined with other evidence, might imply or otherwise cause a jury to infer this ultimate conclusion, however, is permitted under the rule.” United States v. Vesey, 338 F.3d 913, 916 (8th Cir.2003).

Gregory's testimony focused on government Exhibit 30, which summarized the pseudoephedrine logs and displayed the Wells family's purchases on a calendar. The government identified particular groupings of pseudoephedrine pill purchases on the calendar and asked Gregory whether, given his training and experience, these groupings of purchases were significant. On several occasions, Gregory responded that “[t]his pseudoephedrine is being purchased to be used in the manufacturing of methamphetamine.”

Wells...