United States v. Everett Kyle Hall

America, STATES UNITED

Appellee, HALL, known Kyle also

Everett as Eric, also known

as Appellant.

Shorty, America, Appellee, States

United Hall, Appellant. Joe America, Appellee, Hall, Appellant.

Roy Lee 97-4170, 97-3944, 97-4171.

Nos. Appeals, Court Circuit.

Eighth 9, 1998. June

Submitted 30, 1999.

Filed March Banc Rehearing En

Rehearing and 30, 1999. April

Denied MO, ar- Carver, Springfield, D.

Thomas Hall. Kyle for gued, MO, argued, Baker, Springfield Michael Hall. Joe for MO, argued, Kizer, Springfield H. John Hall. Lee Roy for MO, ar- Louis, St. Fagan, K. Michael appellee. gued for Before RICHARD S. ARNOLD and trial, however, Before Mr. pointed MORRIS ARNOLD, SHEPPARD out Circuit applicable statutory definition Judges, PANNER,1 “silencer,” District Judge. § see 18 921(a)(3)(C), U.S.C. § (a)(24), and 26 5845(a)(7), § U.S.C. MORRIS ARNOLD, SHEPPARD and the statutes prohibiting posses- Judge. Circuit sion of an unregistered silencer, see 26 trial, After seven-day a jury convicted § § 5861(d), U.S.C. § lack a brothers Everett and Randall Hall and requirement that the silencer in question (who Roy Hall is not related to Everett be connected in way some with interstate Hall) and Randall of conspiracy to distrib commerce. He then that, contended ute methamphetamine and to possess case, to his clause, the commerce Const, methamphetamine with the intent to dis I, 8,§ U.S. art. cl. provided tribute it. See 21 § U.S.C. 841(a)(1), no authority him prosecuting under § 841(b)(1)(A)(viii), 846; § see also those statutes and that since those stat- Hall, States v. 116 F.3d 1253 utes were the basis for one count of the — rt. -, indictment, ce that count should be dis- —1106, (1998), L.Ed.2d - and missed. The trial court denied the mo- Hall, States v. tion. Cir.1996). The district court2 sentenced On appeal, the government evidently each the defendants to 150 months in concedes presented that it no proof of a prison for that crime. jury also con direct connection between interstate com- victed Everett Hall of possession of an merce and the alleged silencer. gov- unregistered silencer. See 26 U.S.C. asserts, ernment however, that even if Mr. 5841, § 5861(d), § 5871; § see also 18 Hall possessed the alleged silencer solely § 921(a)(3)(C), U.S.C. § 921(a)(24), and 26 (as within one state he implicitly argues), 5845(a)(7). § U.S.C. The district court in act doing so was within power sentenced him to 120 months in prison for Congress to regulate under the commerce (to that crime run concurrently with his disagree. clause. We sentence for conspiracy). In United Lopez, States v. 549, Each of the defendants appeals both his 567, 115 131 L.Ed.2d 626 conviction and his sentence. affirm We (1995), Supreme Court stated that the both the convictions and the sentences. commerce clause of the Constitution gives Congress the power regulate even intra- I. state if activities those “might, activities One count of the indictment charged through repetition elsewhere, substantially Everett Hall with possession of unreg- an affect [some] sort of interstate commerce.” istered silencer. Mr. Hall asserts In evaluating he whether specific a intrastate did not know that the alleged activity silencer was is legitimately so characterized, a law, “firearm” under the thus whether 18 U.S.C. a specific criminal stat- § 921(a)(3)(C), 26 ute 5845(a)(7), § U.S.C. will be upheld against did a challenge not know that the item in based on the question clause, commerce could in at least fact function three inquiries to diminish are relevant. sound gun, and was not shown to possessed First, do the relevant criminal statutes (all the item question in of which asser- contain a “jurisdictional element which tions we discuss in a later section), but he ensure, would through case-by-case inqui- not dispute does that the alleged silencer ry, that the possession [silencer] in ques- was not registered. See 26 U.S.C. tion affects interstate commerce”? at Id. 5841(a). § 561, 115 S.Ct. 1624. None of the relevant 1. The Panner, Honorable Owen M. 2. The Smith, Honorable Ortrie D. Judge District for the District Ore- Judge States District for Western District gon, sitting by designation. of Missouri. in the amended slightly ele- an such contains case in this statutes Act of Streets Safe Control Crime ment. 90-351, Stat. 197- Law No. Public activity arise intrastate Second, does 1968 U.S.C.C.A.N. in reprinted § with, commer- of, it connected isor out renumbered act same- The 271-81. “an activity is transaction, so cial associated section statutory regulation larger aof part essential cur number section it the giving provision, regulatory activity, which economic remainder id. See use. rently in the intra- unless be undercut could scheme rewritten were provisions derivative those Mr. Id. regulated”? activity were state Control the Gun and amended slightly aof possession contends 90-618, 82 No. 1968, Public Law Act has “noth- state one solely within silencer in 1968 1213-36, reprinted § Stat. sort or ‘commerce’ to do with ing 1986, the In 1397, 1413-23. U.S.C.C.A.N. agree id., we enterprise,” economic those associated sections statutory contention. with that renumber rearranged and were provisions cur numbers the section ed, them giving criminal enacting the ask, in Finally, we Act of Reform Tax See use. rently in “even or issue, Congress, did at statutes 2085- 99-514, Stat. Law 1986, Public committee,” “legis- make congressional [a] U.S.C.C.A.N. reprinted § [intra- regarding findings lative 2095. com- interstate upon effect activity’s] state 1624. 562, 115 S.Ct. Id. merce”? de- transitions multiple Throughout normal- “Congress regard that this note however, content above, scribed findings formal to make required is not ly essential- remained original provisions [in- burdens substantial toas material particulars in all the same ly com- on interstate has activity trastate] U.S.C. See, respectively, case. this find- “congressional id., but merce,” 5845(a)(7); § 921(a)(3)(C), U.S.C. § to evaluate courts] [the ... enable ings one statu- 5861(d); § 5841, § § the [intrastate] judgment legislative that was to this tory section substantially affect[s] activity Fire- the National of part originally not such no commerce, though even interstate moreover, simply 1934, ofAct arms the naked to visible [is] effect substantial already a term of clarification answer To 563, 1624. 115 eye,” id. its later one of or act original the of part case, this to regard in specific inquiry this 921(a)(24),rela- § 18 See U.S.C. versions. the origin of at the look a closer take we act, defining 1(a) original § to tive here. at issue statutes criminal ... silencing device “any as “silencer” Because firearm.” aof report relevant sections statutory All of the are this statutes criminal silencers unregistered of possession minor relatively (or a all derivations provisions of incarnations subsequent are of of) provisions original clarification National part originally that were 1934, dowe Act of Firearms the National 26, June Act See of 1934. Act Firearms legisla- consult improper it think not 73-474, Stat. No. 1934, Public Law determining act of that history also, tive See 5(a), § 14. 1(a), § 1236-40, § re- findings with made Congress whether 25, 53 Stat. I.R.C., ch. respectively, commerce interstate on effect spect to 2733(a), 393, § 27, 292-94, 53 Stat. ch. here, ie., activity at issue the intrastate and, 2729, respectively, 3261(b), § § within solely a silencer possession 5848(1); 721-29, § 53, I.R.C., Stat. 68A ch. one state. 5851; § 5841, § § (identical in both reports The committee provisions, derivative of those One be- bill on the Congress) houses 921(a)(3)(C), rewritten § 18 U.S.C. came original National Firearms Act of clause as an alternative source for the 1934 contained no findings. See H.R.Rep. authority prosecute Mr. Hall under the (1934); No. 73-1780 see also S.Rep. No. statutes question, Mr. Hall did ad- 73-1444 Nor did the dress committee the taxing clause in either a reply reports on the bills that brief or became the argument. oral We have thus legislation See, on firearms. had to anticipate the most significant argu- to the ments Omnibus Crime Control he might and Safe raised 1968, respect. Streets Act of S.Rep. 90-1097, No. reprinted in 1968 2112, and, U.S.C.C.A.N. We see no need to address every chal-

with respect to the Gun Control Act of lenge that has ever been brought to the 1968, H.R.Rep. 90-1577, No. reprinted in power Congress under the taxing clause 4410, U.S.C.C.A.N. and H.R.Rep. No. with respect to the statutes relevant to Mr. 90-1956, reprinted in 1968 U.S.C.C.A.N. Hall’s case. address, doWe however, 4426. Congress added definition of “si- what we consider to be the sig- two most lencer” statutes, see 18 U.S.C. nificant of those challenges, namely, that § 921(a)(24), through the Firearms Own- statutes question were enacted in ers’ Protection Act of Public Law violation of the tenth amendment and that 99-308, No. 449-61, 100 Stat. § 101(6), pertinent re- registration and payment tax printed in 1986 U.S.C.C.AN. requirements, but the see 26 5821(a), § U.S.C. report committee § 5821(b), the bill § § 5841, became § 5861(d), are that act included no (and findings. punitive in nature therefore criminal punishment) and consequently outside the then, We conclude, that Congress made power (Other civil of taxation. challenges legislative no findings, either explicit or have been based on the ex post facto implicit, from which we may reliably con- clause, the right arms, to bear right clude that the intrastate possession of si- protection against self-incrimination, lencers imposes burdens,” “substantial Lo- process due clause, equal protection pez, 514 U.S. at on clause, prohibition against cruel and interstate commerce. In light of the ab- unusual punishment, and the right pri- sence of such findings, the absence of a vacy.) jurisdictional element in the relevant stat- In United Sanchez, States v. utes, the absence of a commercial transac- 71 S.Ct. (1950), L.Ed. 47 43 - tion regard to Mr. possession Hall’s Supreme Court considered the scope of the alleged silencer, and the absence of of the taxing clause with respect to a stat proof of a connection between interstate ute that imposed a tax on the transfer of commerce and the alleged silencer, we marijuana, to paid be by either the trans- hold that the relevant count of the indict- feror or transferee, the with the amount ment against Mr. Hall cannot be sustained and the liable person governed both by under the commerce clause. whether the transferee had previously reg

istered with the government, federal as by mandated a separate (At II. statute. that time, persons certain could legally possess We turn consequently to the issue of marijuana. These particular statutes were Const, whether the clause, taxing see U.S. repealed 1970, in when the federal drug I, 8,§ art. 1, cl. provided the authority to revised.) laws were in defendant that prosecute Hall Everett under the (a statutes transferor) asserted, first, that the question in in the count, relevant as the tax had the effect not only of regulating government also contends. We note that but also of deterring traffic in marijuana although (in the cited both and, its second, that the amount of the tax brief and its oral argument) the taxing imposed if the transferee had not previous-

1141 same the for prosecution criminal separate constitute as to great sowas registered ly in nature punitive to be act, held tax. was a than rather punishment criminal jeopardy the double violative therefore 44, 71 S.Ct. at Id. Thalacker, 162 v. Padavich clause), and charac- “regulatory the to respect With (a Cir.1998) that tax 521, 522-23 stated Court Supreme tax, the the ter” act, illegal an solely by triggered not was a that serious “beyond was it that a separate only after imposed not was merely valid to be cease not does tax act, was same the for prosecution even or discourages, criminal regulates, it because in nature taxed,” punitive de- be to not activities held the definitely deters jeop- double is of the obtained violative revenue not “the that therefore fact the spite States “the revenue United clause). in that Court obviously negligible,” ardy 108, the that 45-46, or secondary,” 71 S.Ct. may Sanchez, be at v. purpose Con- which the “activities on nature civil imposed the tax stated further permitted [be otherwise the not might fact by the gress altered was not tax did the Court Although Id. the regulate.” if greater to] much was tax of the amount as analysis this characterize expressly not registered previously not transferee chal- a tenth-amendment to responsive government. the federal with to reserved power a (involving lenge Court’s Supreme in the nothing seeWe Congress to delegated because states v. Sanchez States reasoning in United cases Constitution), three all by with conclusion different a compel would portion on in relied Court requirement registration respect 44-45, prem- were at id. see opinion, connection imposed was on tenth-amendment part relevant ised seeWe case. in that at issue tax transfer Sonzinsky See arguments. analogous or statutes registration in the tax 511-12, nothing 506, 57 States, U.S. 300 United v. moreover, ease, (tenth- Hall’s (1937) in Everett issue 772 at 554, L.Ed. 81 S.Ct. analogous from annu- them distinguish an regarding argument), amendment fire- in United dealers on imposed considered tax statutes license al Hamilton, Son U.S. 292 remarked Court Co. As the arms; Magnano Sanchez. 554, 1109 L.Ed. 599, 78 44-47, 57 S.Ct. S.Ct. at U.S. zinsky, regarding argument), applicable (1934) (analogous provisions similar respect sales margarine provi intrastate tax on dealers, “registration state firearms tax on the state from different as supportable obviously ... are sions Hampton sales; and butter intrastate purpose.” a revenue aid States, v.Co. whether considered have courts Other L.Ed. 411-13, suffi- taxing clause scope regarding argument), (1928) (analogous to enact Congress to allow ciently broad where countries imports tax Mr. which under statute particular than lower were costs production U.S.C. prosecuted, States. in the United a crime it makes 5861(d), which § nature” “penal With unreg- “firearm” aof possessor Sanchez, 340 U.S. tax, though even Noting one. istered Court Supreme on registration duty of impose statutes precipitating transfer since the stated “firearm,” aof transferor or the maker tax can “the illegal, not itself was tax authorizing provision no fact have than rather ... civil called properly be as) pos- “mere” describe (what might we 45, 71 S.Ct. Id. in nature. criminal” “firearm,” various register sessor Kurth v. Revenue Department Cf. enactment upheld still have courts 777-82, 114 S.Ct. 767, Ranch, U.S. 511 taxing scope 5861(d) as within § (a (1994) tax 767 1937, 128 L.Ed.2d v. Gres- States See, United e.g., clause. essence, triggered not remedial Cir.1997), (5th 258, 263-64 ham, F.3d 118 after imposed act, illegal by an 1142 - denied,

cert. U.S. -, 702, 118 S.Ct. an affidavit from an agent of the Drug 139 (1998); L.Ed.2d 645 United States Enforcement (DEA) Administration Aiken, 446, (4th 974 F.2d 448 Cir.1992); related various information supplied by and United Tankersley, 492 F.2d two confidential informants. Each of the (7th 962, Cir.1974). 967 See also Milentz Hall brothers moved under Fed.R.Crim.P. States, v. United 111, (8th 446 F.2d 112-13 12(b)(3) to suppress the evidence obtained Cir.1971). in those searches because of material omis- In concluding Congress had sions from and misrepresentations in the authority under the taxing clause to DEA agent’s make affidavit. They asserted that it a crime to possess an unregistered “fire the DEA agent deliberately or recklessly arm,” the courts explained failed to include in the affidavit the crimi- 5861(d) § is “in aid of a revenue purpose,” nal history, the prior use of “numerous Sonzinsky, 513, 300 U.S. at 57 554, aliases,” the contemporaneous arrest by virtue of 5861(d) § fact that helps detention for possession of stolen property the government learn “the chain of pos (and, presumably, concomitant motive to session of a firearm” and thus to identify try to strike a by deal providing false the maker liable tax, for the Hunter v. information about the Hall brothers), States, United 260, (9th 73 F.3d 262 Cir. “mental instability,” and the “long-time 1996) (per curiam), see also United States drug abuse” of one of the confidential in- v. Dodge, (2d 142, 61 F.3d 146 Cir.1995), (whose formants identity the Hall brothers denied, cert. 969, 516 1000, U.S. 116 S.Ct. discerned). had The Hall brothers also 428, 542, (1995), L.Ed.2d and asserted that the information supplied by Jones, United 976 F.2d 184 that confidential informant to the DEA (4th Cir.1992), denied, cert. agent was insufficiently reliable, not de- 2351, 124 113 S.Ct. (1993). L.Ed.2d 260 At tailed enough, uncorroborated, and untrue least one court has further commented and, accordingly, that the DEA agent’s 5861(d) § encourages the makers representations in the affidavit were delib- “firearms” register them and to pay the erately false or recklessly made. because, tax otherwise, those makers “face the possibility of being un The trial court denied the mo able to sell the anyone,” [‘firearms’] to tions suppress without a hearing. On United Aiken, States v. 974 F.2d at 448. appeal, the Hall brothers challenge the trial court’s denial of a hearing and of their

We agree with the reasoning that motions to suppress. We review for those an courts offered. We therefore hold abuse of discretion the that Congress trial court’s deci the authority under the sion on whether to hold an taxing clause to evidentiary define as a crime the hearing on possession validity search war unregistered silencer. See, rants. e.g., See also States v. Pearson, States v. Hiveley, 8 F.3d (8th Cir.1995) (per cert. cu- riam)-, also 3A C. Wright, 128 L.Ed.2d 863 Federal (1994), Practice and citing with apparent Procedure: approval Criminal Unit 2d Tous, § ed States v. 801 at 191 We review de novo Cir.1972) curiam), trial (per court’s ruling which held motions to 5861(d) § suppress, was within the scope evaluating only error, tax for clear ing clause. however, any findings of fact by the trial court and giving appropriate deference to III. the inferences apparently drawn from obtained and those executed facts by law officers, enforcement search warrants for separate the premises the court that issued the search warrants, in which Everett Hall and Randall Hall and the trial See, court. e.g., Ornelas v. lived. The basis for those warrants States, was 517 690, 691, 699, U.S. 116

1143 search issuing the court A period. same (1996); see 911 L.Ed.2d 1657, 134 S.Ct. been manifestly have 240, would 213, warrants Gates, U.S. 462 v. Illinois also in confidential therefore, the that (1983), aware, 527 2317, L.Ed.2d 76 103 citizen,” LaMo “a model not Weinbender, F.3d was formant v. States and United (or prob possibly and at Cir.1997). rie, F.3d (8th 1327, 1329 used had and history a criminal had ably) a hearing on ato entitled To be argu the reject we Accordingly, abases. pur obtained evidence suppress to motion in to failure agent’s DEA the that ment issued was that warrant search to a suant the about information in the affidavit clude affidavit, defendant’s a to response history criminal informant’s confidential trustworthi the to respect with assertions so the affidavit made aliases her use of more than be “must affidavit the of ness sup have not it could misleading that Delaware, 438 Franks conclusory.” if warrants issuance the ported L.Ed.2d 98 S.Ct. See, e.g., included. been had facts those must motion (1978). The defendant’s id. show preliminary a “substantial to amount “deliber of 170, 98 S.Ct. id. at ing,” omis the that believe do we Nor for disregard of reckless or falsehood ate about information of affidavit the from sion by accompanied be truth, ... must the contemporane informant’s confidential the falsity deliberate proof.... of an offer possession for detention arrest ous impeachment whose disregard reckless or motive, (and potential property stolen affi- the that only ... is permitted is by herself for a deal therefore, strike to that if, material when ... Finally, ant. Hall about the information false providing falsity or alleged the subject the is to the affidavit brothers) compromised side, there to one is set disregard reckless sup have not could it that an extent such warrant the content sufficient remains if that cause probable finding of a ported probable finding of a support to affidavit rejected haveWe included. been fact had at 171- Id. required.” hearing cause, no concluding, as past, the contentions such 2674. 72, 98 S.Ct. issuing search law, courts that a matter criteria, above the a applied possibility aware are warrants form, a defendant’s to seeking modified le slightly bemay informant confidential omissions See, of material assertions situation. own her or in his niency See, e.g., United warrant. search Gladney, e.g., United Cir.1996). 547, 555 LaMorie, F.3d Cir.1995). circumstances, require we In those in the the absence respect With prelimi a “substantial to make defendant confiden any reference affidavit 171, 98 Franks, at showing,” nary instability” abeged “mental informant’s tial facts omitted affiant “that abuse,” observe we drug “long-time reckless make, inor intent information specific made, only omissions of whether disregard Hall or Hall Everett by affi provided misleading, and the affidavit un- one was suppress in motions omitted in the by the davit, supplemented if to the “subsequent finding of statement support sworn formation, could informant LaMorie, search,” confidential cause.” probable and one problems” mental “hospitalized confidential statement unsworn omis material With a drug addict known was “a informant brothers, by alleged sions only drugs.” dependency heavy state did affidavit agent’s DEA agent DEA however, assertion, ad informant confidential facts alleged two of those aware even prostitution” “acts of committing mitted yet another affidavit gave he when participating period a two-month over effect statement unsworn in that vehicles” about theft in “the DEA agent “a prior romantic connec information was not described as proving tion” with a sister of Everett Hall and “to be accurate as to where stolen Hall, had previously been at the property was.” We consider the first two premises searched, to be and had failed to of those actually assertions to be support- disclose “personally known information ive of the agent’s DEA representations that would drawn into question” about the confidential past informant’s re- the information that the confidential infor liability and the third one to relate to a mant supplied in support of the affidavit. subject of insignificance. relative In view, our the Hall brothers’ unsworn The motions to suppress also offered statements fall far short as an offer of assertions that because of the confidential proof that would require an evidentiary informant’s failure to describe in detail to hearing. Crook, United States v. Cf. the DEA agent Hall, “Everett his family, cert. de residence,” or his “despite allegations [her] nied, 112 S.Ct. of some trips residence,” [that] L.Ed.2d 138 because of the confidential informant’s ad- To be entitled to a hearing on mitted involvement “in both drugs and their motions to suppress because of delib prostitution,” the DEA agent could not in erately false or recklessly made state good faith have believed that the confiden- (as ments in contrasted with deliberate or tial informant was a credible person. In from) reckless omissions the DEA agent’s neither their motions to suppress nor their affidavit, the Hall brothers had to cast briefs on appeal, however, did the Hall doubt on the veracity of the DEA agent, brothers offer any authority for the propo- Franks, 438 U.S. at 2674; 98 S.Ct. sition that those circumstances are some- thus aspersions with respect to the confi critical how to an evaluation of a confiden- dential informant herself were useful only tial informant’s credibility. indirectly, is, support as for the argu The motions suppress offered addi- ment the DEA agent’s statements tional assertions that the information that about the confidential informant’s reliabili provided by the confidential informant ty, specificity, collateral support, was uncorroborated, thus suggesting that truthfulness were deliberately false or the DEA agent could not reasonably have (We recklessly made. realize that as a decided that the confidential informant’s practical matter, two those evaluations are information was believable. only spe- very closely entwined; we outline the con cific information so challenged, though, ceptual framework above solely to empha was described in motion, Everett Hall’s size the exact contours of the which directed attention to the inquiry.) confidential In this regard, we consider ini informant’s allegations that in tially one alleged three- untrustworthiness of the month period DEA she agent’s observed methamphet- statements that the confiden amine in quantities tial of “up informant in pound” one was “reliable” “on had, most” of “at “on prior least occasions, 30 different furnished occa- information ... sions” residence, concerning stolen that he “hid property meth- amphetamine which resulted in the arrest and conviction different kinds of contain- ers individuals involved.” around pool located on the back side of the residence,” and that there were The Hall brothers’ motions to suppress “numerous cars” “large metal build- offered only three assertions about ing shop” premises. on his confidential past informant’s reliability, namely, that her “information ... concern- agent’s DEA state, affidavit did ing stolen property” might however, have resulted that law enforcement officers had from her own involvement theft, in that flown over the in question residence that she might have “merely snitched out” had seen pool in the specified, location her comrades theft, in that and that her along “numerous cars ... around regard impeaching credibility. property." agent's her Ev- The DEA affidavit also joined stated that law enforcement officers had erett Hall in the motion on the first photographed "large building day government responded metal of trial. The shop" premises question. possess any on the that it did not or control reject psychiatric thus the Hall brothers' assertions medical or records for the `wit- alleged with ration for the confidential informant's in- lack of corrobo- ness. The trial court then denied the mo- tion. supposed formation and the effect of that appeal, lack of corroboration on the trustworthi- On the defendants ac knowledge government agent's has no ness of the IDEA affidavit. obligation to obtain for a defendant rec Finally, suppress the motions to offered already ords that it does not have in its assertions that the information that was possession See, e.g., or control. provided by the confidential informant was Riley, 1377, so, States v. 657 F.2d untrue. Even if that were there is Cir.1981); nothing see also United States v. Skorn in the record that would warrant iak, 750, (8th Cir.1995), agent 755-56 an inference that the IDEA knew denied, yet cert. 516 U.S. 116 S.Ct. that the information was untrue and deliberately recklessly 133 L.Ed.2d 414 In these circum or offered it to the court that issued the search warrants. stances, by we see no error the trial court denying light above, the defendants' motion for med In of the discussion we re psychiatric ject argument ical and records on the witness the Hall brothers' that the question. trial court abused its discretion in declin ing hearing to hold a on the trustworthi During opening statements, Roy agent's ness of the DEA affidavit. After lawyer Hall's made several remarks about considering totality of the circum Specifically, that witness. Mr. Hall's law- stances attendant to the issuance of the yer "past stated that the witness had a case, moreover, search warrants in this history lying," that she had "told see, e.g., Gates, 230, 233, 238, 462 U.S. at years law enforcement authorities a few 103 S.Ct. we hold that the court that ago that her father had committed a sex issued the warrants had a substantial basis against her," prompted crime which concluding, 236, 238, 246, see id. at being in," "taken and that she had "then probable that there was cause Thus, lawyer sug- recanted it." Mr. Hall's to believe that contraband or evidence of gested, it was reasonable to believe that wrongdoing premis would be found at the the witness would lie about Mr. Hall's question, 230, 236, 238, 246, es in see id. at alleged drug-related activities. 103 S.Ct. see also id. at LaMorie, 100 F.3d at 552. testified, When the witness later Accordingly, we affirm the trial court's lawyer attempted Mr. Hall's to cross-ex denial of the Hall brothers' motions to amine her about the incident with her fa suppress. government objected, ther. The contend ing wholly Iv. that such evidence was on "a collateral matter." The trial court then Shortly trial, before Randall Hall lawyer pro refused to allow Mr. Hall's Roy Hall asked the trial court to order ceed with cross-examination of the witness government any to disclose medical incident, about that which had occurred 10 attempted records related to the suicideof years previously, when the witness was 13 one witness as well as years appeal, argues psychiatric old. On Mr. Hall her records that existed before the trial court's restriction of that attempted her suicide. Randall Hall and rights Roy suggested they cross-examination violated his under needed such clause, prepare the confrontation see U.S. Const. records to for cross-examination question,specffically disagree. of the witness in amend. VI. We The confrontation clause guar cert. antees “an opportunity for effective cross- 1050, 114 S.Ct. 126 L.Ed.2d 670 examination, not cross-examination that is (1994), and United States v. Crump, way, effective whatever and to whatever F.2d Cir.1991). 952-53 extent, the might defense wish” (emphasis Given circumstances, these and the mar- in original). Fensterer, Delaware v. ginal relevance the incident between the 15, 20, U.S. 106 S.Ct. 88 L.Ed.2d 15 and father, witness her we hold that the (1985) curiam). (per The confrontation trial court’s restriction of Roy Hall’s cross- clause generally “is satisfied when the de examination of the witness with respect fense given a full and fair opportunity to that incident did not violate probe rights expose and un- [the] infirmities” of testi der the mony witness, from confrontation See, clause. e.g., “thereby calling to Brown, the States v. attention of the factfinder 611; the F.3d at reasons for giving Willis, scant weight” States v. to that testimony. F.2d at 415- 16; Id. at 292; and also United States v. Delaware Crump, 934 F.2d Arsdall, Van 673, 680, 106 at 952-53. 89 L.Ed.2d 674 A critical consideration in determining whether the V. defendant had such a “full fair and oppor One of the tunity,” witnesses who Fensterer, Delaware v. testified 474 U.S. at behalf 106 S.Ct. defendants is whether was the oldest defendant “had sister other ways Everett to obtain Hall and the effect Randall that Hall. the excluded She stated examination that she would had have al retired in late legedly established.” 1994 from position her United States v. as a paralegal for Brown, Cir.1997). Attorney’s U.S. office that was prose words, In other did the defendant cuting have the defendants. On both direct ex “ample opportunity to discredit” the testi amination and cross-examination, she de mony of the relevant witness? Id. nied that she had ever used position her From obtain the trial information transcript, it for the appears that defendants on the witness in question in investigative this case testi- activities of that office fied, at minimum, from late also morning denied that she had ever taken or through the end of the day read a cross- case file that was not necessary to by examination the defendants accounted her duties in the office. (and well over half possibly as much as In its case, rebuttal the government two-thirds) of that time. In light of those called an Assistant U.S. Attorney from proportions and in light of the defendants’ office, who testified that after noticing success bringing out not only multiple particular that a methamphetamine-related instances serious lying by the witness (relative case file person to a other than but also several substantial reasons for her defendants) was “missing,” she found to have lied in her original statements to the case file on the sister’s desk. The drug federal agents, and to continue to lie witness that, also testified her knowl- trial, about Roy Hall’s alleged drug- edge, there no “legitimate was reason” for activities,

related we believe addi- the sister to have that tional case file. effect of The cross-examination about the defendants subsequently incident between moved to strike witness and her fa- the testimony ther would have been Assistant U.S. Attor- minimal. We also ney, note that the contending incident that the government between the witness and her father acted in bad faith in calling related to the her and that events at issue in the trial testimony and was remote not proper rebuttal. in time. We therefore consider it trial court at first denied motion, only been of slight relevance See, at best. stating that “the whole issue is somewhat e.g., Willis, United States collateral to charges in this case” the testimo whatsoever inference no irrele- “somewhat testimony was appeal, On file. case to” relative ny vant.” assert Hall Roy that, al- argued then defendants instructions court’s the trial despite “brought collateral, issue though Attorney’s testi Assistant jury, the solely for by the into to for jury for the impossible “was mony somebody suggesting purpose court trial therefore get” in or- ... improper something done [had] motion denying the its discretion abused defendants, [for] assist der See, States e.g., a mistrial. for all.” evidence no been there’s which 1390, 1397-98 Maza, the that asserted further defendants The U.S. rt. never “was question file in ce case particular 1345, 136 1008, 117 S.Ct. discovery” ... during ... available made (1997). 886, 137 L.Ed.2d the L.Ed.2d [that] inference “the clear that and that ... is disagree. make perhaps to jury going by” being assisted were] defendants [the Assistant testimony, the During her case of the subject the was who person the file the case that Attorney conceded U.S. question. in file in- “sensitive of “devoid” was question in “there’s been that had not commented therefore The trial court and formation” [the that in a instead, kept whatsoever was but, inference no up” been “locked was associated the hallway, file] that case of that subject common in a cabinet defendants.” three ... these “not to with way told any ever wasn’t” “probably sister contended defendants the it that hallway,” response, In in the in the files get made indeed had government the that sister the that happened” have “could government the since implication, mistake,” such the that by up file that “picked the that fact the of an issue “making nothing to contained question file case ... defendants the] [of two sister cooperat- be subject might its suggest con- duties ostensibly performing [was] had that she and government, the ing with the the interests trary to “di- had sister that the information” “no defen- doing, the In so Attorney’s office.” drugs.” traffic [to] others helped rectly “at- government argued, dants concessions, collateral of these light In credibility” and was tacking the [sister’s] the testi- relevance minimal and nature “by had her the sister “insinuating” that instructions prompt court’s the trial mony, something to done office in that actions that the presumption and the jury, to having ever defendants’] [the frustrate instructions, court’s trial followed jury she while charged or arrested been abuse did not trial court hold we defendants there,” worked for motion denying discretion its kind of some “successfully operating been Maza, See, e.g., United mistrial. outside operation methamphetamine at 1397. Attorney’s office because U.S. of the realm the defendants sister,” [the] VI. file case of the subject contend defendants three All de- of cahoots.” type some “in were their to sustain insufficient a mistrial. evidence for moved then fendants distribute to conspiracy convictions motion. denied the court trial metham- possess methamphetamine announced court the trial jury, To the it. distribute intent to with phetamine Assistant all striking it was evidence although They argue court The trial testimony. Attorney’s that each the conclusion allowed may consid- no give “to jury instructed then there was methamphetamine, used themof whatso- testimony any [that] eration conclu- support evidence insufficient testimony relative any disregard ever,” “to conspired, defendant each “to draw sion question, file in to” spring, to spring, both that Roy Hall had sold methamphetamine the other defendants to distribute meth to her at least twice in fall, summer and amphetamine possess toor large enough 1994, and that he had instructed her amounts of it allow the inference of an optimal quantities for her sale of metham- intent to They distribute it. also challenge phetamine to others. She also testified the credibility of several wit that she had met all of the defendants in nesses who admitted to being heavy users 1994, that she had Roy seen Hall acquire of methamphetamine. Finally, they chal methamphetamine from each of the Hall lenge the trial court’s finding (by a prepon brothers, that she had seen both Everett evidence) derance of the that all three of Hall Roy Hall using a “cutting” pow- them wrere in a conspiracy together at the der to reduce the purity level of some time and therefore that certain methamphetamine, and that she had seen hearsay testimony each of the defendants with at least a them could be used against both of the pound of methamphetamine on separate others. See 801(d)(2)(E). Fed.R.Evid. occasions in early 1995. She testified fur- Law enforcement officers testified that ther that she had traveled with Randall during a search of Everett premises Hall’s Hall and Roy Hall on one occasion during in spring, officers found an electronic the relevant period to a trailer where digital scale, two bottles of a “cutting” methamphetamine was being made and powder commonly to used reduce the puri- that of the pounds three of methamphet- ty level of methamphetamine, and various amine that acquired there, Everett separate amounts of methamphetamine Hall and Roy Hall took a half-pound each ranging in quantity from .66 grams to 47.3 and Randall kept Hall pounds. two grams and ranging purity level from 20 percent percent, to 91 some of which was That witness also testified that she used concealed inside uninstalled engine parts. up to grams two of methamphetamine a Another law enforcement officer testified day during the period. relevant A second that during a search of Randall Hall’s witness testifying under an immunity premises in spring, officers found an agreement government with the stated electronic digital scale, a bottle of a “cut- that a reasonable amount of methamphet- ting” powder commonly used to reduce amine keep on hand for personal use purity level of methamphetamine, a vial of was approximately three and a half grams methamphetamine with a purity level of 43 (roughly one-eighth ounce) of an and that percent, and a pamphlet with instructions she up used grama of methamphet- for making methamphetamine. An addi- tional law enforcement officer testified that day amine a during the period. A third witness during testifying under a an im- search a storage building on munity agreement person’s another with the premises government in spring, 1995, stated officers that found a triple-beam she “a scale; participant” in an that other person agreement to testified that distribute put methamphetamine he that scale or a similar one in both Hall his own storage brothers spring and sum- building mer, at Roy Hall’s request. 1993. A Another fourth witness testifying law officer, enforcement with approximate- under an immunity agreement with the ly years 15 of experience in drug-related government stated that each of the Hall investigations, testified that a purity level brothers had sold methamphetamine to of 12.5 percent was in “the high range” for her in either 1993 or 1994. A fifth witness methamphetamine used by individuals and testifying under an immunity agreement that “clandestinely” manufactured meth- with stated Roy that Hall amphetamine “usually” had an initial puri- given had him methamphetamine about 15 ty level of approximately percent. 90 times in late 1994 or early 1995 in ex- A witness testifying under an immunity change for services, certain that he had agreement with the government stated seen Mr. Hall with as much as a pound of

1149 pre- court’s trial challenge during fendants’ occasion one on methamphetamine existed. conspiracy a that finding liminary triple-beam a he seen time, that he had kitchen, Mr. Hall’s scale into items several VII. transfer Mr. Hall helped premises on the building storage vein, related somewhat In a found later officers enforcement law where evidence contends scale. triple-beam thus conspiracy one than more showed is evidence declining to believe erred court the trial con conspiracies. the defendants’ multiple support jury sufficient instruct “ immu ‘to witness first evidence sufficient there was victions. Whether met she instruc stated conspiracy multiple nity agreement ... a sustain occa one specified subject 1994 law defendants generally tion ” spring, late States United between sion review.’ novo de defen two of accompanied quoting Maza, she at when F.3d methamphetamine where Jackson, a trailer dants two those made, stated being cert. pounds three least (1996); acquired defendants L.Ed.2d further there, and methamphetamine Delpit, 94 also divided defendants three Cir.1996). arguments Hall’s stated Mr. methamphetamine pounds three different up two conflate actually appeal on quantity smallest there. acquired question. to this respect difficulties three that from took any defendant that which, according danger jury half-pound, was a pounds The first is the that a witnesses, far two testimony of will convict a defendant because of a con amount, regard use spiracy partici personal than more in which the defendant did tes witnesses pate charged Several level. purity of less but that was not the one bought personally had they See, e.g., that tified the indictment. 8th Circuit Mod from, witnessed 5.06G(3), methamphetamine el Criminal Instruction at seen or had by, use, methamphetamine of sales and note 2 on at 152 With by various “cut” being methamphetamine difficulty, to that Mr. Hall asserts dur defendants three testimony of combinations that the relevant is that of the period. immunity agreement, ing the third witness with an participated who stated that she in a meth of levels purity high amphetamine-related conspiracy with the premises on found methamphetamine Hall brothers in 1993. Randall Hall con spring, the defendants two jury might tends that the have convicted conclusion support easily solely conspiracy him on the basis of that by possessed methamphetamine conspiracy rather than on the basis of the intended three defendants each longer duration-between 1993 and Also distribution. further for eventual charged 1995-that was in the indictment. scales are proposition supporting defen three each proposed associated Mr. Hall's instruction ad- “cutting” powder aof bottles difficulty by stating and the dants dressed this that if the defendants. of the two premises prove on had failed to that a chal the defendants’ reject conspira- therefore We defendant "was a member of the the evidence sufficiency of lenge cy charged," jury which is then the had to it is not in addition noting acquit though may conspiracy, that defendant "even he apparent jury’s revisit province have been a member of some other con- our of certain credibility spiracy." note, however, assessments that the trial conclusions our In light court's instruction on the elements of con- witnesses. the de- address not we need de- n regard, spiracy required, for conviction of fendant, both a finding that “the defendant immunity agreement. She stated Roy joined in the conspiracy” charged (and “as she) bought methamphetamine in [the relevant count] of the indictment” in early another friend. and a finding that the elements with Although Randall Hall characterizes the to that conspiracy were proved “as second difficulty at issue here as the trial to that defendant.” court’s failure to instruct on multiple con- We believe instructions spiracies, the courts have characterized the trial gave court “fairly and adequately con structure and content of his arguments as tained the applicable law ... and covered a question of potentially prejudicial vari- the essence” of Mr. Hall’s proposed in ance between the indictment and proof struction, United Cain, States v. (Indeed, trial. two of the three cases (8th Cir.1997). We therefore that Mr. Hall cites in this regard are actu- reject Mr. Hall’s contention that the trial ally concerned not with a failure to instruct court erred in declining his proposed in the jury multiple about conspiracies but, struction because of the danger that instead, with whether the defendant suf- jury would convict him conspiracy in prejudice fered rights substantial be- which he participated but that was not the cause of a variance between the indictment one charged the indictment. and the proof.) Assuming, however, that The second difficulty that we con the evidence showed participation of sider is the danger jury that a will convict Roy Hall in three conspiracies, and that a defendant because of that defendant’s such circumstances would constitute a var- association with a co-defendant partic who iance between the indictment and the ipated a conspiracy other than the one proof with respect to Hall, we still charged in the indictment and in which the do not believe that Mr. Hall is entitled to a defendant did participate. See, e.g., reversal of his conviction. 8th Circuit Model Criminal Instructions A variance between ¶ the indict 3.07, 3, ¶ at 3.09, 2, 76, and at and and ment proof justifies the the ¶ reversal of use, 4 5, note on ¶ 78, at 5.06B, and 3, a ¶ defendant’s conviction 5, “only when 140, at a 5.06G(2), and 149, at and note 3 ‘spillover’ of use, evidence from one (1996); conspiracy at 152 see also 8th Circuit to another prejudiced has Model [the] Criminal defendant’s 6.21.846, Instruction com rights.” ¶ substantial mittee comments, 1, United v. (1996). States Mor at 397 In ales, 116, (8th 113 this F.3d respect, 119 Cir.1997). Mr. Hall refers to his In associa view, our tion Hall, with Roy who, this case was not a Randall particularly Hall ar gues, participated “complex” one or at one least conspira dealing two with “compli cies other than cated or the one charged confusing” transactions, in the id. at 119-20, indictment and in neither which, we see “no Randall likelihood” that the Hall argues, he himself jury participated. convicted Hall Randall because of the evidence relating to the two allegedly

As sep to the first of those other conspira- arate conspiracies in cies, which Roy Mr. Hall Hall was asserts that the relevant the only involved, defendant evidence is the States testimony of the fifth wit- v. Jagim, 978 1032, F.2d ness with an 1041 immunity agreement. That rt. witness 952, stated 508 U.S. that he 113 present was ce S.Ct. when 2447, Roy 124 Hall sold or L.Ed.2d gave 664 methamphetamine We observe to a as well friend the that (the the trial witness in court mid-1994 instructed the first jury witness with an that immunity “merely agreement being present ... or testified the merely same effect about associating that occa- with others” is not suf sion, friend, the Hall). Roy prove ficient to As to the that “a person joined” has second of those other conspiracies, in a conspiracy. Accordingly, reject we Hall asserts that the relevant evidence is Randall Hall’s assertion that alleged the testimony of the first witness with an prejudiced variance rights. substantial

1151 Thompson, v. States and United States, opinion), v. United See, Berger e.g., Cir.1996) (when 849, 854 1314 82 629, 79 L.Ed. 82-84, 55 S.Ct. 78, at statute the from are derived Morales, charges v. (1935); States on elements here, instruction jury issue Jagim, 119-20; and United at defendant finding that a require v. United must Kotteakos F.2d at 978 Cf. a si- was he 765-66, possessed “what 769 that 758, 752, knew States, U.S. 328 States, v. United lencer”); Staples also see 1239, L.Ed. 1557 90 772-73, 66 S.Ct. n. 1793, 128 conspir U.S. separate (evidence eight (1946) (when de- (1994) charges are un- four L.Ed.2d defendants involving 32 acies here, gov- at issue the statute rived persons). other indicted “knew defendant that must prove ernment VIII. item of the the features” scope” of was within above, brought it Everett “that noted As statute). anof possession count of one charged with contends Mr. Hall silencer. unregistered in this jury instruction relevant The was count on that jury instruction that knew the defendant that finding a required of certain of its omission deficient because firearm, that finding a a possessed he that charge, specifically, elements alleged that silencer, finding a a firearm was “firearm” is a a silencer knowledge as operating “capable firearm was knowledge law under the firearm finding that a designed,” fact could this case item relevant defendant. registered not gun. aof sound diminish function ideally true, suited not instruction, is it is item is the a silencer in which cases contention, we as first Hall’s Mr. Nonethe- “firearm.” to be considered jury relevant it, is understand inter- view, only reasonable less, in our finding that a require did instruction re- that it is instruction pretation of a silencer possession knew he knew the defendant finding quired held has Court Supreme illegal. hav- device “a item scienter, kind of this times many silencer,” aof characteristics all the ing in “specific called to be come has which at 118 S.Ct. n. U.S. Rogers, of most element implied tent,” not an i.e., knew opinion), (plurality n. 7 See, e.g., United criminal offenses. diminish function could item 607-10, 91 Freed, 401 U.S. 18 U.S.C. gun, sound (1971); Rogers 28 L.Ed.2d cf. 921(a)(24). 921(a)(3)(C),§ § 256-57, States, (1998) L.Ed.2d rea- two for conclusion S.Ct. that reach We does the statute a Since required opinion). (plurality First, instruction the sons. Hall know Mr. require that the face on its relevant not firearm the finding that illegal, was a a of silencer was possession indictment that count pertinent that authority no us to least, points he see since we and and, case at “silencer,” in this rule general the out of jury take that would interpretation reasonable no implied, must be of scienter this sort other that “silencer” word make could the instruc that contention reject his we of attach- type for synonym as a than this in objectionable in question tion to diminish that functions gun a ment to respect. thus, both gun of that sound prohib- is agree, Mr. Hall government Hall, Mr. agree doWe basis is the that statute by the ited instruction however, jury that a Sec- count. the relevant charged crime must here charged of the crime elements a both required also ond, instruction knew the defendant that finding require a he that knew defendant finding that the fact func could item that that finding a a firearm See, possessed gun. of a the sound diminish tion “silencer,” and we awas “the” firearm 258-59, n. at Rogers, e.g., re- those interpretation reasonable no 676-77, (plurality 7 n. quirements collectively other than that the We that believe the testimony of the law possessed defendant knew that he an item enforcement officers who fohnd the item in that could in fact function to diminish the question on Mr. premises, Hall’s in con- a gun. sound of reject We therefore Mr. junction with the testimony of the witness Hall’s respect contention with to the ade- with an immunity agreement that she had quacy of the instruction’s description of seen Mr. gun Hall to which the the elements of the crime charged here. item was easily attached, is more than sufficient to support a finding beyond a Mr. Hall also that argues the evi . reasonable doubt dence Mr. Hall insufficient was con- to sustain his con (ie., nected to possession viction for that item of a silencer he knew registered. it). possessed He he asserts that no evi also believe that the dence him to connected the item ques officer’s testimony about the tests on that tion that no evidence showed that he item sufficient to support finding a knew that he possessed the item that the the item actually could function as a silenc- government silencer) and, contended was a er. addition, no evidence showed that With to whether Mr. he knew that the item actually could func knew Hall that the in question item could tion as a silencer. We disagree. actually silencer, function as a we note that Law enforcement officers testified that “knowledge can be inferred from circum during a search of Mr. premises Hall’s evidence, stantial including any external spring, officers found a gun in gyma indications signaling the nature of the [rel bag that was concealed a pan- behind wall evant Staples, item].” 511 U.S. at 615-16 el. A witness testifying under an immuni- n. According to the ty agreement with the stated testimony of law officers, enforcement that she had Mr. seen gun, Hall with that in question item was found concealed be engaged in what she “believe[d]” to be hind a wall panel. Further testimony re “target practice.” An officer further testi- vealed that the item inwas gym same fied that the design of gun allowed bag gun as a to which the item easily could additional barrel to be attached attached, be twine, some rivets, some gym bag contained three such addi- pieces some of twisted steel wool. All barrels, tional one of which was the item three of materials, latter those officers tes the government contended was the tified, can be used to enhance the muffling silencer that Mr. possessed. That capabilities of a silencer on gun. a In our item was easily attached to the gun. An view, the collective content of officer that evi stated that tests on that item re- sufficient, first, dence is to create a vealed that it reason reduced gun sound of the able inference that Mr. approximately Hall knew tenfold. that the item in could actually function as Law enforcement officers testified as and, second, silencer support finding well that the gym bag also held a smaller to that beyond effect a reasonable doubt. nylon bag, which itself contained some reject therefore Mr. challenge Hall’s to twine and plastic a bag with rivets in it. the sufficiency of the evidence on the Two officers testified that twine and rivets charge that he possessed a silencer that can be used to enhance the muffling capa- not registered. bilities of a silencer on a gun. Also inside nylon bag, stated, officers was a black IX. bag containing pieces three wool, of steel each twisted into a All circle a three with hole object in the defendants to the middle. Two officers fact that the judge testified that such who presided over then- steel wool pieces can be used to trial recused enhance himself sponte sua from the the muffling capabilities of a silencer on sentencing a proceedings and thus that the gun. judge who sentenced them had not presid-

1153 Second, Roy Randall Hall and in this see no error ed their trial. We over argue Hall that the made respect. showing respect insufficient 25(b) provides that Fed.R.Crim.P. methamphetamine to be attributed type of ... or other dis “by if reason of absence See, e.g., sentencing purposes. to them for [a] whom defen ability judge before F.3d 944 Ortega, United States v. 150 perform to been tried is unable dant has Cir.1998). therefore, (8th assert, They court performed by the duties be finding in clearly that the court erred its any guilt[y], ... other verdict of after a d- methamphetamine was that the relevant may per the court judge assigned to rather than 1-metham- methamphetamine applies This rule those duties.” form phetamine. here, where, judge recuses as the trial sentencing pro from the himself or herself sentencing guidelines for applicable See, e.g., v. Bennett ceedings. in this case were those effect between (5th Cir.1960), States, 572 285 F.2d November, 1994, November, 1995. 6 cert. 1B1.11(b)(1). guide § Those See U.S.S.G. L.Ed.2,d no The record reveals distinguished types lines between two discretion, moreover, in trial abuse of methamphetamine imposed harsher himself from judge’s decision recuse if consid penalties methamphetamine sentencing proceedings this case. Cf. sentencing ered for in a ease was purposes Cases, Skywalk 680 F.2d In re Federal d-methamphetamine instead 1-metham (8th Cir.1982), and In the 1183-84 2D1.1(a)(3), § phetamine. See U.S.S.G. Horton, 621 F.2d Matter of 2D1.1(c), § § note application 2D1.1 Cir.1980) (both a reviewing cases decision (Nov.1994); see also United States recuse). not to (8th Cir.1998), Haggard, F.3d Jacobs, variously chal The defendants and United States (8th Cir.1998). 1187, 1189 lenge sentencing pro aspects three First, ceedings. contends trial, At a testified that chemist forensic that, sentence, his methamphetamine samples he tested he clearly finding in its court erred officers found on that law enforcement drug with a a connection possessed gun Randall Hall. premises of Everett Hall and subject to a and was thus two-level offense all those sam The chemist stated that guidelines, under the federal enhancement Nothing d-methamphetamine. were ples 2D1.1(b)(1). § see U.S.S.G. any suggests 1-metham- the record however, out, government points As or, in this case phetamine was involved found loaded law enforcement officers indeed, methamphetamine ammuni appropriate gun and additional than the other in this case caused effects Mr. Hall’s in a bedroom tion closet of d-meth characteristic stimulating ones premises. Since during a search (and unlikely with 1-metham- amphetamine enhancement guidelines provide that see, e.g., United States phetamine), danger of violence “reflects the increased Loveless, 587, 591, 593 Cir. drug possess weapons” traffickers when 1998). it is applied “unless and is therefore be circumstances, sentencing In such weapon was improbable that clearly infer that all of the permitted court is offense,” with the see U.S.S.G. connected type same as methamphetamine was application § 2D1.1 note we hold See, e.g., samples the tested. not finding in this respect the court’s (8th Behler, 100 F.3d 636 States v. See, e.g., United States clearly erroneous. — Cir.1995), denied, U.S. -, 118 cert. Darden, v. (1997). We 139 L.Ed.2d 98 S.Ct. 1149, 518 U.S. rt. ce 1026, clearly erro it was not therefore hold that to find that 569, 135 in this case neous for the court L.Ed.2d L.Ed.2d methamphetamine witnesses, of testimony all the relevant for of the relevant in or- sentencing purposes d-methamphet- der to evaluate credibility the of those See, e.g., amine. Love- with respect appropriate witnesses to the less, 139 F.3d at United States methamphetamine amount used to be for Behler, at 100 F.3d sentencing Indeed, purposes. many of the page by citations offered the defendants all Finally, three defendants as apparently were included specifically to that, determining the sert amount credibility the challenge of those wit- methamphetamine to be attributed to them nesses. (one sentencing purposes for to three kilo only grams), the court consulted certain only remarks even to a sug close pages transcript the trial selected gestion that the court read should more accurately thus could the appro not assess page than the by citations offered the de priate quantity methamphetamine. fendants came very at the beginning of The defendants also contend because Everett Hall’s sentencing hearing, when credibility the of the witnesses who testi lawyer asked court “certify the to fied to methamphetamine amounts was so has, fact, it the transcripts read this proper critical to a assessment of that with [has] become familiar the quantity, because the court not did observe testimony contained therein'.” Those com trial, testimony the of those witnesses at ments, however, were in the context of the reliability and because testimo discussion with respect to whether it was ny inherently suspect so given the proper sentencing for the judge, rather untrustworthiness of those witnesses due than the trial judge, preside to drug to their own addictions and incentives sentencing hearings. When Mr. Hall’s lie, to the court not drawn its should lawyer began object specifically to to the conclusions transcript trial with methamphetamine gov amount regard methamphetamine to quantity but ernment proposed sentencing pur evidentiary instead should have held an poses, lawyer solely referred to the hearing determining before that quantity. page citations objec offered Mr. Hall’s sentencing In cases where the tions the presentence report. We con trial, did judge preside over the he or moreover, disingenuous, sider it for the she “must be familiar with enough the case object defendants to on appeal assign to be able to appropriate [an] sen approach court’s determining appro Larios, tence.” United priate amount of methamphetamine for Cir.1981). what is “While sentencing purposes when that court con necessary varies the facts of each sulted all the trial transcript citations case, the depends more the case on the the defendants offered at the time. credibility, demeanor, especially as note well defendants do not witnesses, judge the more a needs to challenge court’s attribution each of do adequately to become familiar with it.” them of relevant amounts for the other Id. at 943. two defendants. See U.S.S.G. court in sentencing this case stated 1B1.3(a)(1)(B) § application ap note at all sentencing hearings three that it had plication note reject 9. We therefore presentence read the relevant defendant’s defendants’ regarding contentions the ne report more than once and had reviewed cessity evidentiary hearing for an in con all of the trial transcript citations nection the imposition of their sen (and provided were by the defendants tences. government). None of the defendants portions We have suggested, objections consulted those either pre- report sentence or the trial during transcript by govern cited sentencing hearings, that the court read the ment and the using defendants. Even entire transcript, trial or even the entire most conservative estimates of metham- 131 L.Ed.2d 549, 115 S.Ct. with each associated quantities phetamine government federal (1995), testimony because disregarding defendant, and manufacture, distribu- incomplete prohibited has or ambiguous by private silencers tion, possession and actual or dates, quantities, to first been has permission defendants by the unless or transfer citizens possession Alcohol, counting some Department led to could obtained or that once, find more Firearms, the device we Tobacco, more than and quantities support person. enough evidence to that registered than been has the relevant determination court’s §§ U.S.C. for sentenc methamphetamine not unlawful contrast, amount it was Lopez By to three one case was in this ing purposes but gun, possess the defendant for determination, in other That kilograms. school. near a to do so only See, erroneous. clearly words, not be sus- can Hall’s conviction Because Ayers, States e.g., Clause, doI under the Commerce tained — cert. of whether reach not L.Ed.2d -, under be sustained might also conviction Clause. Taxation X. I concur exception, single With that I stated, opinion. affirm we well-reasoned reasons Arnold’s Judge For the sen- their judgment. convictions in the concur defendants’ also tences. PANNER, Judge, District M.

OWEN concurring in the part

concurring

judgment. possession Hall’s conviction

Everett sus- be can silencer unregistered It is Clause. Commerce under tained STEENBURGH, VAN C. Oleta pur- legitimate conceive difficult Appellant, needs citizen a private for which pose reasonably con- could Congress silencer. strictly reg- should be silencers clude Appellee. COMPANY, RIVAL outright. or prohibited

ulated No. 98-1275. proof no there was Although in- by Hall traveled possessed silencer Appeals, Court to outlaw commerce, power terstate Eighth Circuit. silencers possession or manufacture 24, 1998. Sept. Submitted traf- prohibit power ancillary to is Generally speaking, silencers. ficking in 26, 1999. Feb. Decided federal delegates Constitution individual tasks those alone, acting accomplish could states coopera- interstate uniformity or where or properly Congress could required. is tion reg- standard a uniform conclude manage fire- needed are ulatory scheme dangerous de- silencers, similar

arms, readily transportable.

vices, which are distinguishable instant Lopez,

from United

Case Details

Case Name: United States v. Everett Kyle Hall

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Mar 30, 1999

Citation: 171 F.3d 1133

Docket Number: 97-3944, 97-4170, 97-4171

Court Abbreviation: 8th Cir.