United States v. Becker

of unlawfully manufacturing and storing BALDOCK, Before HENRY and methamphetamine in violation 21of U.S.C. LUCERO, Circuit Judges. 856(a)(2) § (3) and 18 2;§ possess- U.S.C. ing intent marijuana distribute LUCERO, Circuit Judge. violation of 21 841(a)(1) § U.S.C. and 18 from both Appealing his conviction after (4) 2;§ U.S.C. possessing acetone with trial and his sentence drug various and the intent to manufacture methamphet- firearms charges, defendant-appellant Les- amine in violation of 841(a)(1) § 21 U.S.C. ley Lee Becker asserts as grounds for 2; (5) and 18 U.S.C. and possessing relief errors, several evidentiary insuffi- firearms in and affecting commerce as a cient evidence to support his methamphet- convicted felon violation 18 U.S.C. convictions, amine-related and error in his §§ 924(a)(2). 922(g) and A jury found sentencing. The principal assertions re- Becker guilty on all counts. The district quire us to further analyze two developing court sentenced him to concurrent sen- areas of law: protection by afforded tences of' imprisonment months the Sixth Amendment Confrontation Count 240 months imprisonment on Clause against the admission of out-of- Counts and and 120 months imprison- court statements of a non-testifying confi- ment on Counts 3 and 5. dential informant offered to show why po- lice sought warrant; a search and appeal, whether On Becker argues that hearsay a prior search and subsequent drug convic- from a informant, confidential profile evi- Jones, cook, ed States methamphetamine

dence of a district erroneously argues admitted prior Becker bad acts jury heard Specifically, the it admit evidence. its discretion when into court abused Voigt, who testified Bruce Officer incriminating from statements ted out-of-court unidentified, confi- non-testifying an informant, non-testifying confidential him that Becker dential informant told Officer testimo through Voigt’s introduced and manu- selling methamphetamine ny, issue were because the informant facturing oil and that this hash violated the Confrontation hearsay and information. provided “true and reliable” Amendment. Clause of the Sixth (Ill 196.) objected to Becker R. is out-of-court state Hearsay an hearsay testimony and violation prove the truth of the ment offered to in li- His motion Confrontation Clause. 801(c). asserted. See Fed.R.Evid. matter objections contemporaneous mine and prove Testimony is not offered to which jury also heard testi- were overruled. The statement, out-of-court but truth who, Walsh based mony Agent Tom context or instead relevant offered training experience, described on his hearsay. background, considered characteristics of a Wilson, 107 F.3d See United States object Although Becker did not to cook. (10th Cir.1997); v. Free United States trial, it he now asserts this evidence at man, profile evidence. inadmissible constitutes acts, prior the district court informants

As to bad “[0]ut-of-court admitted, objection background Becker’s and explain overruled to offered 404(b), evidence to Fed.R.Evid. investigation ... must be evaluated under conspira- prior convictions for Becker’s ... [ ] Fed.R.Evid. rele cy methamphetamine and for possess to preju prevent vance and to confusion or tax, as to as well evi- pay drug failure Freeman, (citing F.2d at dice.” during his home prior raid on dence Mancillas, United States v. police allegedly items which recovered (7th Cir.1978)). hearsay On 1309-10 is methamphetamine manufac- sistent sues, heightened we accord deference to turing. “because the determina district court claims, hearsay tion of whether certain evidence is evidentiary

In addition to these heavily particu facts of upon was insuffi- rests argues the evidence Becker Wilson, methamphetamine-re- his lar F.3d at support to case.” 780. cient sentencing, his he lated convictions. As to following testimony Voigt of Officer The court’s contends the district determination during government question- elicited was The quantity erroneous. dis- drug was ing: objections and rejected trict court Becker’s [Wjhat did the confi- Q: information findings and recommendations adopted the give you informant that dential concluding that presentence report, that there was you caused believe capability, methamphetamine lab criminal at the Defen- something pounds pertains as it to Count was six dant’s residence? acid on the amount of muriatic based Judge, COUNSEL]: [DEFENSE seized his residence. objection previously would raise our as mentioned for record. II THE Overruled. COURT: abuse of 'discretion We review for Why you—what ... did informa- Q: evidentiary rulings, con the district court’s [confidential informant] tion sidering record a whole.1 See Unit- did argument Becker government but conceded at oral that argued 1. in its brief The object to plain the admission error because did indeed standard of review here trial, testimony. object to the evidence Becker failed Cass, Here, give you you that caused to seek the as in “the hearsay . problem search warrant? is exacerbated because the evi government presented dence the The me that ‘ex A: informant told Becker plain the course of its ... selling methamphetamine investigation’ was go[es] precisely manufacturing govern hash oil. The the issue the prove.” informant also advised me that ment was required Id. Fur thermore, government there were chemicals one of bolstered the which might bedrooms involved informant’s credibility and the in invoked methamphetamine in a in- lab. The formant’s statements for the truth of the actually formant had never ob- matter In opening asserted. arguments, manufacturing served Becker meth- government stated that “the confiden amphetamine, though. tial reliability proven informant’s had been (Ill 175.) Voigt.”

to Officer R. at closing arguments, government re Q: period What time had the confiden- ferred to the out-of-court statements to tial informant been at the Becker theory its of the case: “We know residence? prior least 48 hours to the search approximately pri- A: For two months 28th, warrant application on March the or to the execution the search there was Defen warrant. (VI 540.) dant’s residence.” R. at Q: prior And when was the latest time directly implicates the issue your application for the search guilt and government clearly relied warrant? the informant’s statements as truthful. A: It would have been within 48 hours We conclude that such evidence was used of 28th. March for more than the “limited” purpose al (Ill 199). 197, atR. government Freeman, 563, lowed 816 F.2d at tends the statement was offered to show its an of admission constitutes abuse dis why applied for the Voigt Officer search Cass, cretion. See 127 F.3d at 1224. warrant. Id. tion of dence 1218 omitted)). evidence, however, scene should not be seeming just or words to that cer acted nation duct. an cient. at (10th Cir.1997), 1223 arresting (4th ed.) In relevant However, testimony of United States (quoting “The his or should be allowed some “upon to have put or non-hearsay government’s is insufficient to her 249, effect, information we 2 investigating officer McCormick on Evi the false happened upon presence held v. at 104 should be suffi- Cass, that the offi- use for position identifica received,” (citations and con- 127 justify expla- such of Voigt’s v. n. 3 ments “does constitutional sion L.Ed.2d 66 also conclude stitutional guarantee. Because this is a Confrontation Clause. cert. district court’s United States v. ^[6] Bith, (10th Cir.1974) (citations omitted), denied, federal hearsay evidentiary of the of Although testimony concerning 164 F.3d the informant violated that con embrace (1999). 528 evidence did claim, determination Perez, U.S. the 1323, all we review de novo the admission of Officer Confrontation Clause 827, 120 of the limitations of 493 F.2d See 1334 United States S.Ct. that admis violate the the state 1339, 1342 78, rule,” Cir.), 145 we Roberts, 56, v. likely if Ohio 448 U.S. jury its admission is to consid 66, 2531, (1980), 100 S.Ct. 65 L.Ed.2d 597 er the of what was statement the truth Supreme preju analyzed stated with Court the relation significant resultant (quoting ship dice.” Id. between the Confrontation Clause and United States v. For (2d Cir.1995) rester, 52, (inter 60 hearsay 59 rules of evidence and estab omitted)). nal quotation following approach: general lished Perez, scrutiny. See other or examination present is not hearsay declarant “[W]hen Voigt Officer at 1342. While state- ... his at trial for cross-examination informant’s “[t]he found ade- that he it bears if testified only admissible ment is ”2 reliable,” true and ... to be reliability.’ “Out-of- information ‘indicia quate basis, such 196), had no (III requirements R. at testimony satisfies court cross-examination, to inde- constitutes if it or Amendment oath as an of the Sixth dem- exception’ or reliabil- informant’s hearsay evaluate ‘firmly rooted pendently of the guarantees admission particularized conclude the onstrates ity. We Rith, F.3d at violated trustworthiness.” informant’s 346, Illinois, 502 U.S. v. (quoting White rights. Amendment Sixth 736, L.Ed.2d 8, 112 n. S.Ct. & 356-57 of constitutional an error where Even (1992)). hold that we Because as to found, inquire must is magnitude must hearsay, we inadmissible testimony is Chap See is harmless. the error whether the statements whether determine 18, 22, 87 U.S. California, 386 v. man sufficiently are informant confidential (1967); see also 824, 17 L.Ed.2d 705 S.Ct. trustworthy. id. See 52(a). is error Such Fed.R.Crim.P. to- on the dependent is Trustworthiness evi admitted properly if harmless “the id.; see circumstances. tality and the overwhelming, so guilt dence 497 U.S. Wright, also Idaho admit [improperly effect prejudicial (1990). L.Ed.2d 110 S.Ct. by compar insignificant so evidence] ted leeway considerable ‘courts have “Though reasonable beyond a ison, it is clear fac- appropriate in their consideration use of [evi improper that the doubt those are tors,’ circumstances the relevant Schneble harmless error.” was dence] the state- making of surround ‘that 92 S.Ct. Florida, 405 U.S. partic- the declarant and that render ment (1972). review 31 L.Ed.2d belief,’ test that ‘the such worthy of ularly admit the statement in which context marginal would of cross-examination trial, it and how used ted, it was ” how Rith, 1335 (quoting F.3d at utility.’ evi admitted properly to the compares 819-22, 110 S.Ct. U.S. Wright, 497 Oklahoma, 546 See, e.g., Bond dence. 3139). test no mechanical There is 1369, 1376 at 1335-36 id. reliability. See determining n. 12. lim court’s the trial In addition charging it to the iting instruction the circumstances totality of A and con content the disregard statement’s of the out-of-court analysis the search only as sider it indicia any particularized not reveal does explicitly stated warrant, Voigt Officer not were The statements reliability. Becker observed never informant the that subject to cross- and were under oath neglected ex- Roberts, the defendant "when witness in also held Supreme Court 2. The enabled” have 2531, rights that would 66, "the ercise that S.Ct. 100 U.S. at 448 Rith, 164 F.3d witnesses. of the showing frontation a requires ... Clause Confrontation Jackson, 88 F.3d v. (citing States United 1335 is unavailable." hearsay declarant] [a (further Cir.1996)) cita- (10th 845, n. 2 847 unavailability later the Court modified Green, omitted); v. States also United Illinois, see tions U.S. 502 White v. requirement 346, Cir.1999) 1099, (10th (reject- 1109 736, 178 F.3d 354-55, 848 L.Ed.2d 116 S.Ct. 112 challenge because Clause ing a Confrontation neces- analysis is a (1992): "[Ujnavailability non-testifying the call did not inquiry the defendant Clause the sary part of Confrontation witness). not assert does Becker state- challenged out-of-court only when op- him the denied court government or prior aof in the course made were ments and call as identify, subpoena, portunity Many declarants proceeding.... judicial See informant. the confidential witness or de- by prosecution subpoenaed bewill Accordingly, the Green, at 1109. 178 F.3d fense, Clause any Confrontation regardless of require does not Clause Thus, Confrontation right of confronta- requirement.” unavail- informant's show the government to govern- by the failure is not denied tion ability. as a declarant the out-of-court ment to call

1231 possession methamphetamine. More- manufacturing those items. See United present- over, Robinson, wealth of given the evidence 1554, States v. 978 F.2d 1563 of the chemicals and government (10th Cir.1992). ed upheld We have the ad- methamphet- materials consistent of expert testimony detailing mission manufacturing that seized amine significance of “a drug dealer’s tools of residence, and the utter im- from Becker’s blade, single-edge [the] trade: a razor plausibility proffered of Becker’s alterna- pager beeper, pistol,” or and loaded Mc- presence, explanation of their we are tive Donald, 1522, 933 F.2d well as the beyond that the error is harmless satisfied expert testimony admission of to “ex- a reasonable doubt. plaint meaning physical ] evi- dence” officers at the “found arrest scene Ill confiscated,” ... where the narcotics were We review the admission of evi Robinson, 1564; 978 F.2d at see also Unit- fit profile dence that the defendant of a Martinez, ed plain cook error be (10th Cir.1991) (upholding the admission of object Becker cause did the testimo testimony regarding possession 52(b); ny. Fed.R.Crim.P. guns and scales as “tools the trade— 1427, 1435 Enjady, States v. 134 F.3d is, that means for the illegal distribution of “ ‘Plain errors’ are which those drugs”); Young, United States v. 745 F.2d substantial, are obvious and and which (2d Cir.1984) (upholding ad- light when viewed entire record of expert testimony explain mission “to fairness, seriously integrity, affect the or physical manufacturing [of heroin public reputation judicial proceedings.” case”). paraphernalia] that was in the Nall, United States (10th Cir.1991) (citing United States v. Becker contests the admission of testi- 1, 15-16, Young, 470 U.S. S.Ct. Walsh, mony by Agent including testimony (1985); 84 L.Ed.2d 1 United States v. (or describing the skills needed not need- Granville, Cir. ed) methamphetamine cook, abe how 1983)). recipes many generally cooks their have in home,

“Courts have condemned the use para- and that gaunt cooks are of profiles as substantive evidence of noid due to the effect of the chemicals McDonald, guilt.” United States systems, their generally nervous are meth- (10th Cir.1991). Rather users, violent, amphetamine are se- seek than focusing inquiry upon defining cooking cluded locations due to the odor classifying categories evidence into of produces, and only experienced trust cooks however, profile non-profile, or we have with equipment. their approach held the better to com significance The of at the least location inquiry mence the examination of residence, recipes, of Becker’s the and the applicable the rules of evidence. id. at weapons necessarily would not be obvious 1522. Federal Rule of 702 in Evidence specialized specialized testimony. structs us to admit without knowledge Consider- if of it will “assist the trier fact to under ing fine im- potentially the line between the stand evidence.” That Rule “dictates a proper profile acceptable evidence and inquiry juror common-sense a whether specialized testimony explaining signif- the would be able to understand evidence the evidence, physical icance con- cannot specialized knowledge concerning without clude that and there was error so “obvious McDonald, subject.” the F.2d at 933 in light substantial when viewed [that] 1522. seriously the entire record the [it] affect[s] fairness, public reputation or integrity, may

Tools of the trade the necessitate Nall, judicial proceedings.” 949 appearance expert F.2d of an witness if the significance could understand the of 309.

2123 v. trafficking offense.” United States

IV (10th 452, F.2d 459 Cir. 971 Sturmoski of discre review for abuse 1992). government sought The admission admit court’s decision tion the district and to show motive intent. of the evidence 404(b) evidence of Fed.R.Evid. pursuant to adjudication drug a deal as prior the factor— for Huddleston As second States and bad acts. See United er other prior nar relevance—we have “noted Lazcano-Villalobos, 175 F.3d v. when that cotics involvement relevant 404(b) states, (10th in rel Rule time, probative, highly conduct is in ‘close part: evant the activity and to the with which similar ” crimes, wrongs, or of other Evidence Wilson, charged.’ defendant is prove the char- acts is not admissible v. United McKin (quoting show action person a in order to acter of Cir.1989)). nell, F.2d may howev- conformity therewith. It prior convictions relevance of Becker’s er, purposes, other admissible for be by length is undermined time .motive, opportunity, proof such prior conduct in tween the acts and the intent, plan, knowledge, preparation, two in the instant convictions—the volved or acci- identity, or absence of mistake felony inci prior preceded convictions dent. approximately years by dent six and under Rule properly Evidence is admitted prior years. it four preceded raid about (1) 404(b) aye met: requirements if four years concep our Four to six transcends proper pur- for a was offered evidence “close in time” tion of as established (2) 404(b); pose under Fed.R.Evid. Wilson, (quotation at 785 omit F.3d under Fed.R.Evid. was relevant Ramirez, ted); United States cf. (3) 401; probative value evi- (10th Cir.1995) (upholding 943-44 substantially outweighed by dence was prior admission of acts that occurred one potential prejudice for unfair under its earlier); Record, year United States (4) court, 403; Fed.R.Evid. and district Cir.1989) (up 1372-76 jury pursuant upon request, instructed prior acts that holding admission to Fed.R.Evid. 105 to consider evi- approximately years occurred two to three it which was only purpose dence Mora, earlier); United States v. admitted. See Huddleston (10th Cir.1988) (upholding the ad States, 691-92, 108 S.Ct. 485 U.S. prior drug a uncharged mission of transac (1988). 1496, 99 L.Ed.2d 771 occurring one two approximately tion prior three Becker claims that earlier). months (1) prior acts in error: were admitted proximi- temporal want of addition to possess felony conspiracy to conviction for ty, similarity prior of these acts to (2) felony prior con methamphetamine; limit- instant offenses is Pay “Drug viction for Dealer’s Failure Huddleston, (I ed. the illicit sub- Under Supp. Tax” R. Ex. 91 at Drug Kansas (3) prior 2); stance in the acts is of some prior involved search of Becker’s residence, methamphet prior produced which relevance. There search trafficking paraphernalia. prior He ar amine the unrelated conviction for impermissibly this evidence estab gues possess, spiracy to both of which involved the propensity lished his to commit crimes methamphetamine. of the Three counts n objects charged grounds of and the in- jury on which convicted Becker prejudice. irrelevance and methamphetamine as well. Howev- volved er, recovery prior methamphet- of the first factor of the Huddle- .find his trafficking paraphernalia amine the evi- analysis ston satisfied because prior residence his convictions for proper pur- for dence was introduced possess methamphetamine and spiracy to drug to pose using “prior of involvement in- pay drug a for taxes drug or intent in failure Kansas plan, show motive 1233 distribution, not only possession volve tribute it—the did have some a manufacturing, and thus lack common probative in rebutting value theo- Becker’s involving possession scheme. Prior acts ry as to his intent. His claim that similarity have and distribution some equipment produce was used to hash oil in- possession Becker’s conviction for instead of unpersua- is marijuana, but prior tent to distribute addition, sive. Becker’s admission that marijuana. acts did involve he used and possessed methamphetamine effectively Often, jury informed the of his involve- specific factual circumstances with methamphetamine. acts can ment prior compari- of allow for further While this son later in example, offenses. For admission diminished necessity ad- States v. F.3d 981 Conway, acts, United mitting prior it also diminished (10th Cir.1995), upheld we the admission prejudice resulting from the admission prior selling arrests for cocaine from motel because the evidence was cumulative. support a charge possession rooms to for Moreover, the district court instructed the with intent to distribute cocaine from consider the evidence only contrast, By in neighboring motels. Wil- purpose it for which was admitted. son, F.3d at that a prior we held against “Where the evidence a defen- arising from and mari- conviction cocaine overwhelming, any dant is error in men- juana af- person found on the defendant’s tioning a defendant’s criminal record is ter a stop vehicle not relevant to his Sloan, harmless.” United later) (eight arrest months and subsequent (10th Cir.1996) Unit- (citing indictment distribution of cocaine from ed Scoy, States Van 482 F.2d cannot a residence. We conduct such (10th Cir.1973)). Because there is over- comparison in the instant case because whelming prior evidence absent Becker’s only record contains bare evidence verdict, support guilty convictions to we plea guilty charges both any prejudice conclude that error or re- any underlying without indication as to the sulting prior from the admission his factual circumstances. Because the lack convictions and the search of his residence evidence, we prior conclude that the acts is harmless. close in time only are not and have facial Accordingly, similarities. the district V court its discretion in admitting abused analysis applies “Cumulative-error evidence. The second Huddleston fac- and, thus, there are two or more er- to where actual tor—relevance—is met factors, Gibson, remaining Huddleston the evi- rors.” Moore (10th Cir.1999) (internal dence necessarily probative less than quotation prejudicial omitted). and the district court’s caution- and citations Becker contends ary the jury instruction to was of limited that even if hold the individual errors utility. harmless, cumulative error necessitates noted, trial. new As the errors in admit- Yet, error is considered the out-of-court Beck- ting statements and had a influ harmless “unless it ‘substantial prior er’s are light acts harmless ence’ on the outcome or leaves one presented substantial evidence ‘grave it doubt’ as to whether had such a guilty Considering verdict. these errors Wacker, effect.” United States v. aggregate, upon in the we conclude review (10th Cir.1996) 1453, (quoting of the entire record the cumulative Flanagan, 34 States v. error harmless. Cir.1994)). In determining whether harmless, that, error was we first note VI considering theory defense Beck ' possessed methamphet er used and We review de novo the district amine—but did not manufacture or court’s determination that evi- dis- sufficient

123 4 cooking to a “cold” meth- See amine support to a conviction. denee existed 1448, McDermott, od, copy 64 such a F.3d but that no written United States Cir.1995). (10th view the evi- 1457 Many of the recipe was found. materials circumstantial, dence, to- and both direct methamphet- necessary manufacturing for to reasonable inferences gether present, and it not neces- amine were is therefrom, most light “in drawn sary every matching for chemical each rec- to government to the determine favorable Moreover, juror a could ipe present. to be any trier of fact could whether rational readily rejected explanation, have Becker’s essential elements of have found the id., considering testimony particularly see Jones, doubt.” beyond crime a reasonable certain chemicals were antithetical to that (citation omitted); see 44 at 864-65 F.3d oil, which was production of hash 15 Riggins, also States v. equipment. for the proffered use Cir.1994). (10th evidence, coupled the physical Based on evidence, a rational with other admissible argues Becker first that there a juror could conclude that Becker took support to convic insufficient evidence his step manufacturing. towards substantial 1—attempting tion to manufac on Count methamphetamine ture of 21 violation challenges, conclusory Becker also in a § 2. § and 18 The ele U.S.C. U.S.C. manner citation to le- supporting without (1) to that offense are intent ments of his gal authority, convictions Counts (2) methamphetamine, manufacture and a 4—managing controlling and and dwell- of an act which constitutes commission for manufac- ing purpose unlawfully step substantial towards commission of turing and storing methamphetamine and substantive offense. See United States acetone with the intent man- possessing Leopard, 936 F.2d Cir. methamphetamine. ufacture He contends 1991). Becker there was concedes proof requisite of his at- without intent supporting inference of tempt to manufacture manufacture, but contends that the sec 4 also fail. for Count Counts ond element of the offense is satisfied already Because we have concluded that best, because the evidence reflects “[at] the evidence was sufficient preparatory two acts divided between the find challenge Count we Counts making methamphet distinct methods of evi- and meritless. circumstantial 31.) (Appellant’s Br. at amine.” tools, recipes ingredients, dence of Although Becker is correct that the di- trier fact to find sufficient for rational sparse, rect evidence is the circumstantial methamphet- the essential elements of the than sufficient evidence more beyond counts a reasonable amine-related to draw reasonable inferences that Becker Jones, doubt. 44 F.3d at 864-65. steps took towards the commis- substantial offense, i.e., sion manu- substantive VII facturing methamphetamine. See United where the amount of cases Yoakam, 1.16 States v. drugs seized does not reflect the scale of (10th Cir.1997) (holding “jury may that a offense, commentary Guide draw reasonable inferences from direct approxi the trial requires judge lines (citation and circumstantial evidence” quantity mate the controlled sub omitted)). presented goes The evidence permits the stance and court to consider beyond preparation. mere Becker con- laboratory capability any “the size or a recipe cedes that for a “hot” method of 2D1.1, involved.” See U.S.S.G. com present cooking methamphetamine was as Havens, (n.12); some, ment. United States all, though ingredi- well of the 704-05 When ents for this method. Becker also issue, court, trial manufacturing is at “the ingredients cedes that most methamphet- upon testimony, may present manufacturing proper estimate quantity producible Cir.1989) ultimate of drugs. 3742(e)) (quoting 18 U.S.C. This estimate should equal (further to the omitted). citation Factual deter drugs producible amount of if precur- minations are reviewed under clearly possessed sor by chemicals the defendant erroneous standard. See United States v. proportionate combined with Rutter, (10th 897 F.2d Cir. amounts of the missing ingredients includ- 1990). will not We disturb such a finding ing processing equipment.”3 Havens, 910 “unless it has no or, in the record F.2d at 705. The government bears the after reviewing all evidence, we are burden of proving quantity by prepon- a firmly convinced that an error has been See, of derance the evidence. e.g., United made.” United States v. Bernaugh, 969 Ortiz, (10th States v. 993 F.2d (10th Cir.1992) (citing Unit Cook, ed States 949 F.2d Cir.1991)). In making quantity its determina tion, the district court stated: The district court’s findings The Court finds that the U.S. Probation were based on presentence report and Office accurately has calculated the quantity estimates from the testing of guidelines By this case. using the recipes Becker’s by KBI forensic chemist 160 ounces of muriatic acid to approxi Dwaine Worley. Extrapolating from the mate capability the methamphet quantity of acid, muriatic precursor amine laboratory, the United States chemical that was found and apparently Probation Office took into account the used, already the United States Probation amounts of muriatic acid that the defen Office arrived at yields theoretical dant likely prior cook, used in a which Becker’s lab of up pounds to 23 of metha utilized recipe pro would have mphetamine.4 presentence The report grams duced 691 of methamphetamine. then “used the most conservative estimate The Court notes that when approximat of 6 pounds of actual methamphetamine, ing drug quantities, when drug sei which the defendant could produced have zure does not reflect the scale of the (VII calculate the guideline.” 9.) R. at offense, the Court must base their find presented at trial includes ings on information, reliable and where Worley’s testimony that he tested one of reigns, uncertainty must err on the side the recipes seized from Becker’s residence of caution. See [, United States v. Ortiz and concluded the recipe produce did 208], 993 F.2d at The U.S. Probation methamphetamine, and based on his train Office, with the assistance of the K.B.I. ing experience, recipe other also

forensic laboratory, approximated the produce would methamphetamine. capability the methamphetamine labo ratory in this provided case and for er challenges Becker the trial courts deter- ror part, defendant’s resulting in mination of the approximated capability of a reduced quantity. the methamphetamine lab and argues the (II 6.) Supp. R. at resultant quantity We calculation sup- was not “defer[ ] 5— ported district application by court’s evidence. guidelines Becker’s chal- to the facts” and application lenge review district court’s drug quantity Guidelines for errors of approximation law. United very similar one we Smith, States 888 F.2d rejected Short, United States v. 3. Becker approximation contends that drug assertion, 4. Contrary to a decision to quantity is violation process. rely of due precursor on one chemical rather than rejected have another process quantity does not argument, due render determina- holding clearly tion erroneous. See "[i]t is not a United. pro- denial due Lillard, (9th Cir.1991) cess to determine based facts on estimates (holding that drug estimation quantity is Havens, expert derived testimony." not limited precursor least abundant F.2d at 706. present). chemical impermissi- was this estimation ments that (10th 1445, 1455-58 erro- clearly Ha- was to the estimate court, ble and that There, district the expert of vens, a combination on neous. relied in the trial and information from

testimony quan- to approximate report presentence VIII pro- have been could drugs that tity of court the of district methamphet- judgment The by the defendant’s duced In at 1456-57. laboratory. See id. AFFIRMED. amine us, expert the before Short, in case the materials identified at trial testimony concurring. BALDOCK, Judge, Circuit as elements home the defendant’s in found Part except for opinion join I Court’s the cooking pro- of a viable in conclusion ultimate II. Court’s The specific to testify as cess, did not but of the confidential II admission Part that from manufactured that quantity could consti- statements out-of-court informant’s See found. equipment chemicals cor- my opinion is in error tuted harmless then court 7. The district & n. at 1457 id. however, disagree, rect. I presen- in the approximations on relied believe its analysis hearsay [the Court’s at “what that arrived report tence Clause manufac- Confrontation appropriate Amendment an Sixth felt was report] 1456. We unnecessary. at Id. yield wholly analysis factor.” turing in the district “clear error find declined to characterizes wrongly The Court calculations its to base decision court’s state- out-of-court informant’s confidential in the figures contained the factual 801(c) Evid. hearsay. Fed. R. ments as Id. Report.” Amended Presentence statement, other “a hearsay as defines 1457. tes- declarant -while by the one made than so, that defendant noted doing In we in hearing, offered or the trial tifying at his own expert an of produce to had failed the matter truth of prove the figures and proffered to attack offered not A statement asserted.” “supported by figures that the cluded asserted, of the matter truth prove the that though testimony.” Id. Even expert hearsay. therefore, not considered precise means detail the testimony did not the con- case, offered the Government this calculations, we concluded making for statements informant’s fidential esti- upon which the “the information asserted, to estab- but matter truth of indicia has a minimum based are mates As investigation. reason for lish (quoting United at 1458 reliability.” Id. Freeman, States in United we stated 1073, Easterling, 921 Cir.1986): “[0]ut 558, 563 Cir.1990)). failed likewise Becker when hearsay are not court statements challenge own to of his expert produce explain- purpose the limited offered for figures. proffered investigation why a Government ing has finding court’s the district Because the Government Because undertaken.” con record, are not infor- confidential case offered See made. has been an error vinced explain statements mant’s out-of-court district 864. Bernaugh, war- a search for applied officer why the caution on the side erred properly court hearsay rant, are statements such more on the based Becker and sentenced R. Evid. Fed. meaning Ortiz, within yield. estimated conservative 801(c).1 argu- reject Becker’s F.2d at 208. We reliance during The Government’s ings trial. appeared invoke While the Government 1. argument during closing statements on the matter the truth the statements retro- does not improper but may been have argument, subse- closing such during asserted back- actively the statements transform the state- render does not quent reference hearsay. into admissible ground information evidentiary rai- hearsay purposes ments The conclusion that the statements were explain offered the reason for the inves UNITED America, STATES of

tigation, rather hearsay than Plaintiff-Appellee, prove offered to asserted, the matter does not end inquiry. our Such statements must be evaluated for relevance under Bountaem CHANTHADARA, Fed. R. Evid. 401 prejudice and for undue Defendant-Appellant.

under R. Freeman, Fed. Evid. 403. No. 97-3229. F.2d at 563. Applying proper analysis, I believe the confidential informant’s state United States Court of Appeals, ments unduly were prejudicial under Fed. Tenth Circuit. R. Evid. 403. The statements specifically Nov. 2000. identified by Defendant name and went “precisely [to] issue the government required

was prove.” States Cass,

See also United Pulley, (6th Cir.1991)(where propriety

of investigative issue, methods were not at

out-of-court statement naming defendant

substantially increased risk the jury

would consider the out-of-court statement

in determining guilt defendant’s or inno

cence); Graham, 30B Michael H. Federal

Practice and Procedure 49-51 (2000)(out-of-court statement indicating ac

cused engaged in a particular crime is so

likely to be misused as evi

dence of the fact asserted that it should be

excluded on grounds probative that the

value of the statement admitted for a non-

hearsay purpose is substantially out

weighed by the danger of the unfair preju 403).

dice under Rule

Accordingly, I would conclude that the

admission of the out-of-court statements unduly prejudicial and constitutes an

abuse of Nevertheless, discretion.2 I

agree with the Court’s ultimate conclusion

that admission of the confidential infor-

mant’s out-of-court statements was harm-

less error. 2. Because Cir.l997)(no confidential informant’s state- asserting basis for a Sixth ments hearsay, were not I disagree further Amendment violation where defendant was with the court’s conclusion that the admission prohibited confronting the witness of the statements violated Defendant's Sixth against because hearsay him no Amendment rights. Confrontation Clause admitted.) Wilson, United States v. 107

Case Details

Case Name: United States v. Becker

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Oct 31, 2000

Citation: 230 F.3d 1224

Docket Number: 98-3361

Court Abbreviation: 10th Cir.