*1 “No- its statement than tation Worthing- form Right to Sue” tice filed with untimely “charge was
ton’s circumstances, these Under commission.” give deference no reason to
seewe interpretation.
EEOC’s grant of court’s
We reverse for further remand
summary judgment
proceedings. America, Appellee, STATES
UNITED KOCHER, Appellant. Lloyd
Harold
No. 90-2195. Appeals,
Eighth Circuit. Jan.
Submitted 6, 1991. Nov.
Decided
phetamine Virginia. in the state of Unsuc- attempt in his to manufacture am- cessful own, phetamine on his Smith contacted if resume manu- White and asked he could him. In re- facturing amphetamine with advised sponse, White Smith helping now him. While Smith was Ark., Coleman, Memphis, West Gerald gave lengths away, White Craft some appellant. for containing amphetamine. pipe PVC Craft Rock, Ark., Jackson, Little Bridges Lesa Kocher, gave amphetamine who then Rock, Banks, (Charles Little argued doghouse neigh- his stored it under a at brief), Ark., appellee. for home. returned to Arkansas bor’s Smith amphetamine requested his from WOLLMAN, Judge, Circuit Before Craft, who took Smith to Koeher’s house. BRIGHT, Judge, and Circuit Senior and Kocher then drove in Kocher’s Smith LOKEN, Judge. Circuit place amphetamine truck to the where the stored, had been where Kocher then re- WOLLMAN, Judge. Circuit it for trieved Smith. Kocher, appeals his convic- Harold L. Jr. present Kocher was when White was ar- possess conspiring for tion and sentence Thereafter, conspiracy. rested for law en- with intent to distribute and forcement officers executed a search war- amphetamine in violation of 21 U.S.C. property, rant on Kocher’s which consisted 846. We affirm. § resided, of a house in which Kocher a barn yards approximately forty located from the I. house, ponds. and several fish The offi- Weiner, amphetamine catfish in Arkan- cers discovered the labo- Kocher raised Craft, farmer, ratory They a fish in- in the found that addi- sas. Darrell barn. Lloyd Gary troduced Kocher to White and tional rooms had been constructed in the barn, periodically hauled catfish Smith. White that an air conditioner had been stalled, for Kocher. pipe that PVC had been installed to amphetamine drain from the manu- wastes in an White and Smith had been involved facturing process, that the walls had been manufacturing operation in aluminum, covered with and that the labo- by Phillip and Weiner at a residence owned ratory equipment had been covered with Fearing Darrell Craft. that the clandestine Testimony plastic. at trial indicated that amphetamine laboratory be discover- help pungent such alterations hide the odor ed, arranged to move it to a bam White during amphet- of the chemicals used from Kocher. that he rented cooking process. amine Smith, White, along Darrell The officers also detected distinctive Craft, elderly and an man who lived acid, phenylacetic ingredient an odor of barn, portion of moved the dismantled produce amphetamine, on Kocher’s Testimony at trial lab into Kocher’s barn. They phone anu his closet. found a equip- although indicated that all of camera, surveillance which was focused on boxes, the smell of the ment was sealed barn, leading driveway concealed amphet- manufacturing chemicals used for chimney in the of Kocher’s house and dis- amine was still noticeable. White assem- viewing monitor operated laboratory bled and in the loft covered electricity closet. of Kocher’s barn. The and wa- provided by laboratory
ter used
were
Kocher.
II.
During
Arkansas
period,
Smith left
manufacturing
argues
Kocher first
with the intention of
am-
argues that the statement
Kocher next
allowing into evidence
erred
court1
during the
course
made
by White to Smith to
made
however,
trial,
Testimony at
conspiracy.
amphet-
as an
services
Smith’s
effect
Craft,
Darrell
revealed that
longer needed because
were
cook
amine
*3
the
others moved
Kocher and
helping White.
was
Kocher
during
into
barn sometime
lab
Kocher’s
if
hearsay
is not
only
A statement
two to four
August 1988.
It was
party dur
co-conspirator of a
White
“by a
that Smith contacted
made
weeks later
the
in furtherance of
Arkansas and was told
returning
and
ing the course
about
801(d)(2)(E).
helping
To
We
now
White.
Fed.R.Evid.
that
conspiracy.”
Kocher
exception
court that the
the district
agree
with
requirements
thus
satisfy the
not made
likely
more
than
rule,
must
statement
hearsay
“the
conspiracy.
existed;
of the
during the course
(1)
that
a
demonstrate
were
and declarant
(2)that
defendant
argues
the state
Finally, Kocher
(3)
conspiracy; and
part of
of the
not made
furtherance
ment was
during the course
was made
declaration
“in
agree. The
cannot
conspiracy. We
conspiracy.”
of the
in furtherance
and
broadly con
is
language
to be
furtherance”
F.2d
807
Eisenberg,
v.
States
United
F.2d
Bentley, 706
v.
strued.
States
United
must
Cir.1986).
elements
(8th
These
1453
(8th
1498
evi
preponderance
a
proved by
(1984). “Statements
2397
States, 483
v. United
Bourjaily
a fellow con
coconspirator identifying
by
dence.
171, 176, 107 S.Ct.
in furtherance
to be
spirator
are considered
Bell,
v.
(1987);
States
conspiracy.”
United
United States
L.Ed.2d
Cir.1978).
Cir.1982).
dis
(8th
(8th
Handy,
F.2d
F.2d
re
the ex
Moreover,
these
which reveal
statements
court’s determination
trict
conspiracy are
progress
re
of a
is
and
established
istence
quirements have been
Id.;
conspiracy.
stan
in furtherance
clearly erroneous
under
viewed
Garcia,
893 F.2d
at
Bourjaily,
of review.
dard
Cir.1990).
to Smith
White’s
2781;
Eisenberg, 807
at
coconspirator and
as a
Kocher
identified
at
of the
progress
existence
revealed the
argues that
there was
conspiracy.
Kocher
agree.
do not
conspiracy. We
of a
evidence
dis
Next,
argues that the
Kocher
con
that a
Testimony at trial demonstrated
improperly instructed
trict court
between
initially existed
spiracy
Koch-
testimony regarding
regard to
Craft,
others.
Craft
Darrell
of cocaine.
prior use
er’s
and Smith.
to White
Kocher
introduced
examina-
direct
During
government’s
barn, and Kocher
leased
White
exchange took
following
tion
Smith
into
laboratory equipment
helped move the
place:
utility
bills
paid
the barn.
any time with
spend
you ever
Q. So did
sur
a concealed
and maintained
the barn
your ini-
just
than
the defendant
chimney of his resi
camera
veillance
tial introduction?
closet.
in his bedroom
and a monitor
dence
did,
well,
we
A. We
have—
amphet
containing
gave
pipe
a PVC
Craft
his
back of
time
coke one
out
tooted
Kocher,
controlled
who stored
amine
house.
fish
daddy’s
re
it at Smith’s
retrieved
substance
explain
please
me,
Q. Excuse
Thus,
could readi
court
quest.
you mean?
jury what
preponderance
evidence
by ly find
cocaine.
some
tooted
A. We
involving
conspiracy existed
that a
tooted mean?
does
What
White, and Smith.
Howard, Jr.,
Arkansas.
George
United
Honorable
Judge
Eastern District
District
States
testimony.
government did not
up
put it
a straw and we
A. We
challenged testimony as Rule
proffer
our nose.
(and indeed,
from the ex-
evidence
cocaine?
You sniffed the
Okay.
above,
appears
it
cerpt
set
forth
A. Uh-huh.
ques-
nonresponsive answer to the
Smith’s
not move to strike
counsel did
caught
prosecutor
sur-
probably
tion
during cross examina-
testimony and
specify for the dis-
prise) and thus did not
that the cocaine
established
tion of Smith
see
have,
should
trict court as it
had been
belonged to Smith and
question
Mothershed, ges-
Kocher as a social
by him to
offered
(8th Cir.1988),
particular
issue or issues
ture.
*4
testimony
the
was relevant at the
on which
16, given along
the
Instruction
testimony
given. None-
time the
was
instructions,
informed
court’s other
district
theless,
testimony
the
was before the
once
jury
the
that:
made,
strike
jury and no motion to
was
evidence that
the ac-
Although there is
the task of
district court was faced with
at some
may
cused
have used cocaine
determining
to deal with it.
how best
time,
proof
is not
or
what-
that
evidence
it, Instruction No. 16 was a
As we view
time,
that,
the accused
at a later
ever
404(b)
Rule
combination of a
in
charged
offense
committed the
presumption
permissive
and a
inference or
alleged
as to the
indictment. Evidence
al
permissive presumption
instruction.
use
not therefore be
earlier cocaine
jury to draw an inference from
lows the
jury,
in
by the
considered
facts,
require
jury
does not
certain
but
charged
act
whether the accused
County
to draw that conclusion. See
may such evi-
in the indictment. Nor
County, New York v. Al
Ulster
any
pur-
dence
considered for
be
len,
2213, 2224,
whatever,
pose
jury
unless the
first find
(1979).
pre
jury instructions.” United States Walk Otherwise, well Cir.), Kocher. er, cert. de first trial on the hung as it did nied, 98 have 484 U.S. instruction, prior act. See Huddleston existence of the bad it contains a As a Rule States, favor) (although v. United misstatement necessary quantum proof establish the Thus, I must dis- case. thin government’s
sent. Q. opportunity and the time After that defendant, you you spent with the represents opinion, instruction my again? case, see him in this under all error egregious internal- The instruction is circumstances. took A. Not beside the time that Darrel jury to permitted the ly inconsistent me out there. illogical conclusion completely draw Tr. at 34-35. may have that, defendant because Cross-Examination: occasion, casually on one cocaine “tooted” Q. you say that on one occa- Mr. to show alleged incident can be used Harold and sion that were with conspire engage in defendant’s intent you tooted some cocaine? amphetamines. The the manufacture Yes, A. Sir. jury to convict permitted the Now, amphetamines are cocaine presumption and even to upon illogical an totally animals, different aren’t this irrelevant evidence two substitute conspiracy, so as to necessary proof of they?
justify a conviction. Yes, A. Sir. guilt the issue of particularly Q. Now,
I note that whose cocaine was that? dispute. subject great was thin and the A. It was mine. charged Kocher Initially, offered to him Okay. And was that distributing manufacturing and am- what, as, gesture? as a social conspiracy to manufacture phetamines and Yes, Sir. amphetamines. At the first and distribute *6 occasion Okay. And on that one trial, acquitted Kocher of the manu- only? facturing charge, but and distribution Yes, Sir. conspiracy agree not as to could him on charge. government The retried Id. at count.
this latter questioned instruc- objecting In to the trial, tion, ground attorney on the that the At Kocher defended asserted intent; specifically, that he that he lacked personal one incident of cocaine evidence of drug knowledge no of the illicit possessed support spe- an inference of use could not activities, including the existence conspire cific intent to to manufacture According laboratory. amphetamine distribute merely empty rented an he had instruction, First, examining note inquired to a business associate barn inconsistency in the second the internal in- The defense contested the no further. advising: paragraph arising knowledge ferences of Kocher’s beyond a rea- If the should find government’s evidence that Koch- from the doubt from the other evidence sonable drug phone and closet smelled like er’s did the act the case that the accused and that used in indictment, charged then the installed in camera was a surveillance alleged evidence as to the consider chimney. earlier cocaine use following testimony served as the of mind or intent with which state for instruction 16: basis charged act in the indict- accused did the Direct Examination: ment. spend any time with did ever So Jury Instruction No. ini- just your other than the defendant Here, relating to the no act existed tial introduction? agree- Conspiracy represents an charge. did, well, we A. We have— by objec- state of mind disclosed ment—a time out back of his tooted coke one Thus, to a the act amounted tive facts.1 daddy’s fish house. Austin, 258-59 1. United States v. for his sentence Kocher received court’s and the of mind
state knowledgeable of a bam to rental allegedly to confuse only served not struction years ten it could more than jury that but must serve issue, but advised one, to show trials. “tooting” of cocaine had two prison. He has consider then, it au- illogic, could one count acquitted To follow on intent. intent, if the even find jury to count. agree thorized not show intent. otherwise not government again zealously tried him has government urged the No wonder that view, and, a conviction my obtained court. upon the trial by pressing sole issue of intent extremely erroneous and to issue an judge may not be intent But, importantly, more I reverse the instruction. prejudicial fact, United an isolated upon premised (8th conviction. Welch, 728 F.2d Cir.1984) (citing Morissette v. 274-76, S.Ct.
States, Instead, a (1952)).
255-56, L.Ed. “on must be determined
finding of intent considered the evidence of ‘all the basis surrounding ‘all the light of
together’ in ” Id. circumstances.’ the ma- supports,2 and legion of cases BURK, Appellant, John pre- concedes, “[pjermissive jority long as constitutional so sumptions are irrational.” is drawn inference Doctor, BEENE, in her individu L. Linda Franklin, 471 (citing Francis At capacity as Director and official al 307, 314-15, 105 S.Ct. Private Board of the Arkansas State (1985)). inference But Education, Appellee. Career and farfetched. irrational here is 91-1443. argu- majority’s I cannot subscribe cocaine mutual use that “their ment *7 Appeals, States United and Smith tended establish Eighth Circuit. controlled relationship that involved had 10, Substance At 486-87. Sept. substances.” Submitted one consid- when argument vanishes 7, 1991. Nov. Decided ers that: gave Koch- that he 1. Smith’s way outing in no social at a er cocaine involving Kocher. any
related way implicat- in no conversation whom
ed conspired to manufacture
claimed
(1979);
2213, 2224,
v.
Turner
777
60 L.Ed.2d
(1988);
778,
States
United
864
98
S.Ct.
L.Ed.2d
642,
398, 419,
Cir.1985);
States,
491,
(8th
S.Ct.
90
Hoelscher,
U.S.
494
United
396
F.2d
v.
764
958,
1119,
denied,
654,
reh’g
1121
U.S.
Sopczak, 742
397
F.2d
610
States v.
24 L.Ed.2d
United
Michaels,
(1970);
Cir.1984);
939,
726
(8th
v.
Morissette
144
25 L.Ed.2d
S.Ct.
90
denied,
(8th
275-76,
1307,
246,
cert.
States,
72 S.Ct.
F.2d
1310-11
U.S.
United
342
v.
240, 255-56,
92,
(1984);
820,
38
83 L.Ed.2d
S.Ct.
(1952);
U.S.
105
469
States
United
288
96 L.Ed.
953,
(8th
Holder,
957
1499-1501,
1495,
v.
States
United
Rubio-Villareal,
F.2d
927
v.
Skillman, 442
Cir.1977);
v.
States
United
(9th Cir.
F.2d 1161
granted,
reh’g
en banc
Cir.),
542,
(8th
404 U.S.
F.2d
Welch,
1991);
v.
United
82,
L.Ed.2d 63
Cir.1984)
(quoting Morissette
275-76,
States,
S.Ct.
314-15,
Franklin,
2. Francis
(1952)).
255-56,