145 F3d 1342 United States of America v. Fredericks

145 F.3d 1342

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
Lance FREDERICKS, Defendant-Appellant.
United States of America, Plaintiff-Appellee,
v.
Brian Keith Battles, Defendant-Appellant.

Nos. 97-10242, 97-10266.
D.C. No. CR-S-96-077-EJG.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 16, 1998.
Decided May 21, 1998.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Appeals from the United States District Court for the Eastern District of California, Edward J. Garcia, Senior District Judge, Presiding.

Before NOONAN and TROTT, Circuit Judges, and WALLACH, Judge.**

1

MEMORANDUM*

2

Brian Battles and Lance Fredericks ("Appellants") appeal their convictions and sentences for possession with the intent to distribute crystal methamphetamine and aiding and abetting possession with intent to distribute crystal methamphetamine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Battles was also convicted of accessory after the fact in violation of 18 U.S.C. § 3 because he assisted Scott Wittich, a co-defendant who was still a fugitive at the time of trial, in avoiding arrest and prosecution. We have jurisdiction under 28 U.S.C. § 1291 and we affirm the convictions and sentences of both appellants.

I. BACKGROUND

3

Appellants' convictions resulted from the stop of a pickup truck for possible registration violations on November 8, 1994. Subsequently, items consistent with a laboratory to produce crystal methamphetamine and approximately 12 pounds of crystal methamphetamine were discovered in the back of the truck. Fredericks was a passenger in the pickup truck when it was stopped and was linked by other evidence to the contraband. Battles owned the vehicle the drugs were found in and was also connected to the contraband by other evidence.

4

At sentencing, Fredericks was sentenced to 235 months imprisonment, a 60 month term of supervised release, and a $100 special assessment. Battles was sentenced to 292 months on count one and 180 months on count two to be served concurrently, a term of 60 months supervised release, and a $200 special assessment.

II. Motions To Suppress

5

Appellants challenge the district court's denial of their motions to suppress the evidence obtained from the back of the pickup truck. Although the district court held that both Appellants lacked standing to challenge the stop, search and seizure of the truck, it addressed the merits of the motions to suppress. Consequently, we do not reach the issue of whether the district court erred in holding that neither Appellant had standing.

6

Appellants claim that the officer who stopped the pickup truck lacked reasonable suspicion for the stop. We review determinations of reasonable suspicion and probable cause de novo. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). Findings of historical fact are reviewed for clear error. Id. Reasonable suspicion consists of " 'specific, articulable facts which, together with objective and reasonable inferences, form the basis for suspecting that the particular person detained is engaged in criminal activity.' " United States v. Garcia-Camacho, 53 F.3d 244, 246 (9th Cir.1995) (citations omitted).

7

Here, the officer explained that he stopped the pickup truck because he believed there was a possible registration violation. Fredericks' Excerpts of Record ("F.E.R.") 12-18. The truck had a license plate from Hawaii and California law requires a commercial vehicle, which could be a pickup truck depending on how it is used, to be registered immediately upon arrival in California. See Cal .Veh.Code § 6850; F.E.R. 16. A noncommercial vehicle, which also may be a pickup truck, must be registered within 20 days after the owner becomes a California resident or obtains gainful employment in California (whichever comes first). See Cal.Veh.Code § 6700. The officer reasonably inferred that because the only way a vehicle from Hawaii could get to California was by shipping it, an expensive and lengthy. process, it was likely that the truck was to remain in California and should have been registered.

8

In addition, the officer noticed a load in the back of the truck. F.E.R. 12. Because there were storage facilities in the area, he "thought the load would probably be personal household items (furniture, etc.)." F.E.R. 15. He "suspected ... a registration violation since moving household items and furniture would suggest California residency." F.E.R. 15. The location of the truck in Woodland, California, away from any ports of entry, created the reasonable inference that it had not just arrived in California. Thus, we find that the officer had reasonable suspicion to stop the pickup truck because he had specific, articulable facts from which he objectively and reasonably inferred that a registration violation might be in progress.

9

Appellants also claim that the duration of the stop and scope of questioning was unreasonable. We review the district court's determination regarding whether an officer's questioning was based on reasonable suspicion de novo. United States v. Perez, 37 F.3d 510, 513-14 (9th Cir.1994). "Questions asked during an investigative stop must be 'reasonably related in scope to the justification for their initiation.' " Id. at 513 (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 881, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975) (quoting Terry v. Ohio, 392 U.S. 1, 29, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968))). If the officer observes additional suspicious factors, the officer may broaden his or her line of questioning so long as these factors are "particularized" and "objective". Perez, 37 F.3d at 513 (citation omitted).

10

We find that the duration of the stop and the scope of the questioning was reasonable. The officer inquired into the registration of the vehicle which was his purpose in making the stop, then broadened his questioning when he discovered a discrepancy in the vehicle identification number on the truck and on the registration. He had reason to suspect the truck was stolen and reasonably inferred that it might be used for an illegal purpose. He took appropriate precautions in asking the driver of the pickup truck and Fredericks to step out of the vehicle, and he obtained the driver's consent before searching the vehicle for weapons or drugs. F.E.R. 12-13. Before he started searching the truck, he detected a smell he associated with the manufacture of illegal drugs. F.E.R. 13. Under the facts, the permissible scope of the stop expanded as evidence of other offenses was uncovered and the officer did not exceed the reasonable duration of the initial stop.

11

Appellants claim that the district court abused its discretion when it declined to hold an evidentiary hearing on the motions to suppress evidence. We review the decision by a district court regarding whether to conduct an evidentiary hearing for an abuse of discretion. See United States v. Sarno, 73 F.3d 1470, 1502 (9th Cir.1995), cert. denied, 518 U.S. 1020 (1996). We will direct the district court to hold an evidentiary hearing when defendants make "an offer of proof 'sufficiently definite, specific, detailed, and nonconjectural to enable the court to conclude that contested issues of fact going to the validity of the search are in question.' " United States v. Dicesare, 765 F.2d 890, 896, as amended, 777 F.2d 543 (9th Cir.1985) (citations omitted).

12

Here, the district court stated that it did not hold an evidentiary hearing because it had all the facts which constituted the reasonable suspicion for the initial stop, the sequence of events, the scope of the questioning, and the length of the detention. See F.E.R. 64-67. The government had submitted the police report and a declaration from the officer who stopped the vehicle as well as the grand jury transcript of the driver of the pickup truck regarding the circumstances of the stop and search. See F.E.R. 64-65. Although the district court recognized that there were some factual discrepancies, it held that the discrepancies were not material to the stop and search. F.E.R. 64-65. Appellants' allegations that " '[n]othing in the [officer's declaration]' addressed 'the length of detention, the scope of questioning and the sequence of events,' " Fredericks' Opening Brief at 18, do not constitute a definite, specific, detailed and nonconjectural offer of proof. Thus, we find that the district court did not abuse its discretion by refusing to conduct an evidentiary hearing.

III. Admission of financial evidence

13

Battles claims that the district court erred in admitting evidence regarding his financial situation. We review the district court's decision to admit or exclude evidence for abuse of discretion. Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 647 n. 1, 136 L.Ed.2d 574 (1997). We have allowed evidence of an imminent financial burden to be admitted to show motive. United States v. Jackson, 882 F.2d 1444, 1449 (9th Cir.1989); United States v. Feldman, 788 F.2d 544, 557 (9th Cir.1986) (court permitted testimony showing defendant owed substantial sums of money for jury to consider as a motive to rob a bank). In addition, "[e]vidence that tends to show that a defendant is living beyond his means is of probative value in a case involving a crime resulting in financial gain." United States v. Saniti, 604 F.2d 603, 604 (9th Cir.1979).

14

We find that the district court did not abuse its discretion when it admitted evidence regarding Battles' financial situation because the evidence showed motive and opportunity for Battles to commit the charged crimes.

IV. Motions For Judgment Of Acquittal

15

Appellants claim that the district court erred when it denied their motions for judgment of acquittal. We review the district court's denial of a Rule 29 motion for acquittal de novo. United States v. Clayton, 108 F.3d 1114, 1116 (9th Cir.), cert. denied, --- U.S. ----, 118 S.Ct. 233, 139 L.Ed.2d 165 (1997). The evidence will be sufficient to sustain a conviction if, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original).

16

A review of the evidence regarding Fredericks reveals that a rational trier of fact could have found Fredericks guilty of the crimes charged. Fredericks was present in the truck with the drugs in the back and some of the evidence in the truck had his fingerprints. See F.E.R. 12-13; Supplemental Excerpts of Record ("S.E.R.") 418-26. Fredericks' explanation that he needed the 4 stainless steel bowls, 3 Betty Crocker buffet ranges, and other items found in the back of the pickup truck for camping is inherently unbelievable. Clothes were found in the back of the truck which most likely fit Fredericks. See S.E.R. 322-25. A witness testified at trial that Fredericks was the last person seen driving the pickup on the afternoon in question. S.E.R. 383-85. Finally, added together, the association evidence of Fredericks' trip with Battles and Wittich to Los Angeles (a source city for methamphetamine), their trip to Tahoe/Reno, and the motor home trip Frederick took with Wittich show his guilt. See S.E.R. 296-97, 308-13, 414-15.

17

Thus, we find that a trier of fact could have found that Fredericks knowingly possessed the drugs. His fingerprints were on certain items in the truck. The drugs were in the truck he was riding in and which he had been seen driving that afternoon. Further, a rational trier of fact could have concluded that Fredericks intended to distribute the drugs because he was from Hawaii, a destination state for crystal methamphetamine, and because there was a large quantity of drugs. Finally, his actions with Wittich in most likely manufacturing the crystal methamphetamine constitutes aiding and abetting in each essential element of the charged crime.

18

In reviewing the evidence used to convict Battles, a trier of fact could have reasonably concluded that Battles was guilty of the crimes charged. Battles was closely associated with the persons and events surrounding the seizure of the methamphetamine. He owned the truck and his companies were "cash businesses" indicating that he had access to cash to fund the drug operation. He brought over Fredericks and Wittich from Hawaii, and they went to Los Angeles, a source city for methamphetamine, together. See S.E.R. 296-97, 349-50, 308-10, 414-15. His girlfriend rented the motor home which had methamphetamine residue in it. See S.E.R. 204, 240-41, 288-90, 300, 311-13, 358-59. A person matching Battles' description using the name "Brian Black" purchased denatured alcohol, a funnel and three fans found among the material seized from the back of the truck, and his fingerprints were found on a denatured alcohol can and an acetone can found in the back of the truck. See S.E.R. 245-51, 258-64, 426-28. The circumstances of his flight, i.e., his unwillingness to wait and find out what happened to the company vehicle, the hailing of a cab under an underpass and without luggage, the borrowing of his parents' car and the payment of $1,000 in cash to have it returned, see S.E.R. 362-63, 405-11, showed his knowledge of the contents of the truck. Finally, his call to the driver of the truck telling him to "get out of there" after he was informed that the police had found a drug laboratory in the back of the pickup truck also indicated his guilt. See S.E.R. 338-39.

19

From the facts, the jury could reasonably conclude that Battles was in constructive possession of the crystal methamphetamine seized from the pickup truck. See United States v. Hernandez, 876 F.2d 774, 778 (9th Cir.1989) (proof of the defendant's participation in a "joint venture" to possess a controlled substance may prove constructive possession). The quantity of crystal methamphetamine that was recovered is evidence that Battles intended to distribute it. His actions involving Fredericks and Wittich support a finding by a reasonable person that he aided and abetted in each essential element of the offense. In addition, the evidence is sufficient for a rational finder of fact to determine that he was an accessory after the fact because the evidence established his involvement with the production of the crystal methamphetamine and that he knew of Wittich's involvement. Consequently, when the truck containing the drugs was not returned to him when he expected, he assisted Wittich in fleeing from Woodland and helped him with the intent to hinder or prevent apprehension (along with his own).

20

In view of the evidence, we conclude that the district court did not err in denying the motions for acquittal.

V. Motion For a New Trial

21

Fredericks claims that the district court erred when it denied his motion for a new trial. We review a district court's denial of a motion for a new trial for abuse of discretion. United States v. Alvarez, 86 F.3d 901, 906 (9th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 748, 136 L.Ed.2d 686 (1997). "A district court's power to grant a motion for a new trial is much broader than its power to grant a motion for judgment of acquittal.... [I]t may weigh the evidence and in so doing evaluate for itself the credibility of the witnesses." United States v. A. Lanoy Alston, D.M.D., P.C., 974 F.2d 1206, 1211 (9th Cir.1992) (citations omitted). " 'If the court concludes that, despite the abstract sufficiency of the evidence to sustain the verdict, the evidence preponderates sufficiently heavily against the verdict that a serious miscarriage of justice may have occurred, it may set aside the verdict, grant a new trial, and submit the issues for determination by another jury.' " Id. at 1211-12 (quoting United States v. Lincoln, 630 F.2d 1313, 1319 (8th Cir.1980)).

22

Here, the district court denied Fredericks' motion, stating: "Defendant Fredericks' argument, that the testimony of [the driver of the pickup truck] is completely unworthy of belief, was apparently rejected by the jury and the court concurred with that determination when considered in light of all the other evidence in the case. Ample evidence of defendant Fredericks' guilt was presented and there was no miscarriage of justice in the jury's verdict." F.E.R. 149. Credibility findings are entrusted to the jury. See United States v. Leung, 35 F.3d 1402, 1405 (9th Cir.1994). Because the thrust of Fredericks argument is based on the credibility of a witness whom the jury apparently found to be credible, coupled with the evidence of his guilt discussed above, we conclude that the district court did not abuse its discretion in denying his motion for a new trial.

VI. Proposed Jury Instructions

23

Appellants claim that the district court erred when it refused their proposed jury instructions containing their theory of the defense. "[W]hether the instructions adequately cover [Appellants'] theory of defense, a question of law, the appropriate standard of review is de novo." United States v. Duran, 59 F.3d 938, 941 (9th Cir.1995). "A defendant is entitled to have the judge instruct the jury on his theory of defense, provided that it is supported by law and has some foundation in the evidence." United States v. Mason, 902 F.2d 1434, 1438 (9th Cir.1990). " 'It is not reversible error ... to reject a defendant's proposed instruction on his theory of the case if other instructions, in their entirety, adequately cover that defense theory.' " Duran, 59 F.3d at 941 (quoting Mason, 902 F.2d at 1438).

24

After carefully reviewing the instructions proposed by Appellants and the instructions given by the district court, we conclude that there was no error. The proposed instructions were contained in the instructions given by the district court. With regard to Appellants' contention that the district court did not provide its proposed instruction regarding "mere proximity to drugs" being insufficient to support a finding of possession, the district court instructed the jury that "it is not enough that the defendant merely associated with the persons who possessed with the intent to distribute methamphetamine or was present at the scene of the crime, or knowingly or unintentionally did things that were helpful to the principal." F.E.R. 123.

25

Appellants' contention that the district court failed to instruct the jury that the government must "show beyond a reasonable doubt that each defendant aided and abetted in each essential element of the offense", Fredericks' Opening Brief at 27, fails in view of the district court's general instruction that "the Government has the burden of proving every element of each charge beyond a reasonable doubt". F.E.R. 117. In addition, it specifically instructed that "[t]o prove a defendant guilty of aiding and abetting, the Government must prove beyond a reasonable doubt: [the elements of the charge]." F.E.R. 122-23. Finally, the instructions covered the theory of the defense that Appellants were merely associated with or unknowingly helped persons who committed the crime and, in the case of Fredericks, was merely present when the drugs were discovered.

26

VII. Evidence Of Flight As Showing A Consciousness Of Guilt

27

We will find flight instructions to be valid if the evidence supports "a chain of unbroken inferences from the defendant's behavior to the defendant's guilt of the crime charged." United States v. Silverman, 861 F.2d 571, 581 (9th Cir.1988). "[F]our inferences must be justified: '(1) from the defendant's behavior to flight; (2) from flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged.' " Id. (citations omitted).

28

The district court did not err in instructing the jury on flight as consciousness of guilt. The facts support the inference from flight to a consciousness of guilt of the specific crime charged. Fredericks' behavior in fleeing could reasonably be linked to his consciousness of guilt of the crime charged to actual guilt of the crime charged because it occurred after the police arrested him and after he and the driver of the pickup truck were told by Battles to "get out of there". S.E.R. 339. Battles' actions in changing his destination and his unwillingness to wait and find out what happened to the pickup truck, along with the other evidence, support an inference that links his flight from Woodland with his guilt.

VIII. Sentencing

29

Appellants claim that the district court erred in sentencing them. The district court's interpretation of the Sentencing Guidelines are reviewed de novo while its factual findings are reviewed for clear error. United States v. Gutierrez-Hernandez, 94 F.3d 582, 583-84 (9th Cir.1996). We review the district court's application of the Sentencing Guidelines to the facts for abuse of discretion. Id . at 584.

30

The district court refused to reduce Fredericks sentence for being a "minor participant" as provided for in the U.S. Sentencing Guidelines Manual § 3B1.2(b) (1996). The evidence shows that Fredericks was in the truck where the crystal methamphetamine was discovered; his fingerprints were on certain items in the pickup; and he went on the motor home trip where the powder was likely converted, among other things. F.E.R. 165-171. We affirm the district court's determination that Fredericks was not a minor participant because the preponderance of the evidence pointed to more involvement with the production of the crystal methamphetamine than that of a minor participant and the district court interpreted the guideline correctly.

31

We also affirm the district court's increase by two levels of Battles' offense for being an organizer, leader, manager or supervisor of the criminal activity pursuant to U.S. Sentencing Guidelines Manual § 3B1.1(c) (1996). The evidence shows that Battles owned the truck in which the drugs were found; bought some of the chemicals and equipment; brought the participants together; paid for everything; and told the driver and Fredericks to leave after to the truck was impounded, among other things. F.E.R. 159-165. Consequently, the district court did not misinterpret the guideline or abuse its discretion in determining that Battles was the organizer/leader of the operation because a preponderance of the evidence supported the district court's conclusion.

32

AFFIRMED.

**

The Honorable Evan J. Wallach, United States Court of International Trade, sitting by designation

*

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3