UNITED STATES of America, Appellee, v. Jack H. CLARK, Appellant.
No. 92-1311.
United States Court of Appeals, Eighth Circuit.
Submitted Aug. 10, 1992. Decided Nov. 5, 1992.
At argument the Board‘s lawyer under questioning conceded that a remand for reconsideration of the bargaining order would be proper even if we upheld all the unfair labor practice findings, which we have not done. But a remand for reconsideration of the bargaining order would not be good enоugh. Suppose the Board reconsidered and reissued the order, and again sought enforcement (or the company petitioned for review). By the time the order was enforced—if it was enforced—and all further judicial remedies exhausted, it would be 1993 оr 1994, assuming, as we have no right to do, no further extraordinary delays in this proceeding. Here as in NLRB v. Village IX, Inc., 723 F.2d 1360, 1370 (7th Cir. 1983), the likelihood that a bargaining order effective in 1994 would be an apt remedy for the fairly tepid misconduct that occurred back in 1981 is too remote to warrant protracting this proceeding further. See also Montgomery Ward & Co. v. NLRB, 904 F.2d 1156, 1160-63 (7th Cir. 1990) (concurring opinion). Armed with the cease and desist order, the union, which remains the exclusive bargaining representative of the production and maintenance workers, can if it wishes seek to reopen the bargaining process with the company. The company will doubtless want evidence of current support for the union, but if the union lacks the support of the workers whom it is supposed to be representing, it should not be bargaining on their behalf. In the unusual circumstances of this case the union is not entitled to the shortcut that a bargaining order might provide. Peerless of America, Inc. v. NLRB, 484 F.2d 1108, 1119-20 (7th Cir. 1973); Ithaca College v. NLRB, 623 F.2d 224, 229-30 (2d Cir. 1980).
To summarize, the cease and desist order will be enforced if modified consistently with this opinion. The backpay order will be enforced in full. The bargaining order will not be enforced.
ENFORCEMENT GRANTED IN PART, DENIED IN PART.
Patrick J. Reinert, Cedar Rapids, Iowa, argued, for appellee.
Before BEAM, Circuit Judge, LAY, Senior Circuit Judge, and LOKEN, Circuit Judge.
PER CURIAM.
Jack Clark appeals his conviction and sentence for manufacturing marijuana and for using a firearm during the offensе. He was tried by a jury, found guilty, and sentenced to thirteen years and one month incarceration. We affirm.
Acting on anonymous tips that Clark was growing marijuana on property where he occasionally resided, a Hamilton County Deputy Sheriff conducted air surveillance of that property in an Iowa National Guard helicopter. He saw marijuana growing in a partially enclosed roofless structure on the property. The deputy sheriff then obtained a search warrant. Six plots of growing marijuana were discovered on the property. Evidence, including a loaded 12-gauge shotgun, a loaded .38 caliber revolver, and growing equipment, was seized from Clark‘s house, outbuildings, and pick-up truck. Clark moved to suppress the evidence on the grounds that: 1) the aeriаl surveillance constituted an illegal search and 2) the destruction of the marijuana plants by the Hamilton County authorities1 contravened the exculpatory evidence rule of Brady v. Maryland, 373 U.S. 83, 87, 88, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215 (1963),2 and violated Clark‘s constitutional right to access to the evidence.
In ruling on the motion to suppress, the magistrate judge found that the sеarch was not illegal under the standards set forth in Florida v. Riley, 488 U.S. 445, 449, 109 S. Ct. 693, 102 L. Ed. 2d 835 (1989) and California v. Ciraolo, 476 U.S. 207, 106 S. Ct. 1809, 90 L. Ed. 2d 210 (1986). United States v. Clark, No. CR 90-3015, Report and Recommendation at 7-8 (N.D.Iowa Sept. 4, 1991). He found that Clark had no reasonable expectation of privacy, noting that the area has an extraordinary amount of low-altitude air traffic. Id. He expressly discounted the testimony by Clark and his friend that the helicopter had hovered immediately over the treetops for a long period of time. Id. at 7. With respect to the destruction of evidence, the magistrate judge found that the destroyеd evidence could not reasonably be viewed as exculpatory and, finding no bad faith by the government, recommended that the motion to suppress be denied. Id. at 9-11. The district court later adopted the report and recommendation of the mаgistrate judge, overruling Clark‘s objections. United States v. Clark, No. CR 90-3015, Order at 11 (N.D.Iowa Oct. 28, 1991).
Clark proceeded to trial and was found guilty of manufacture of marijuana and of use of a firearm during a drug transaction. Over Clark‘s objection, the jury was given an aiding and abetting instruction. Clark was sentenced to 97 months incаrceration on the manufacturing marijuana charge. On the firearms count, the court imposed the mandatory minimum sentence of 60 consecutive months.
After review of the record, we are satisfied that there is enough evidence to support the jury‘s verdict on the firearm count. When reviewing for sufficiency, we examine the evidence in the light most favorable to the government, giving it the benefit of all reasonable inferences. United States v. Ivey, 915 F.2d 380, 383 (8th Cir.1990). The mere presence and ready availability of a firearm at a house where drugs are dealt constitutes “use” of a gun during a narcotics offense. United States v. Drew, 894 F.2d 965, 968 (8th Cir.), cert. denied, 494 U.S. 1089, 110 S. Ct. 1830, 108 L. Ed. 2d 959 (1990). A loaded .38 caliber pistol was found in Clark‘s truck and a loaded 12-gauge shotgun was found in Clark‘s house. The jury obviously chose not to believe Clark‘s defense that these weapons were only used for hunting. We will not upset the jury‘s finding.
We also find the evidence sufficient to support an aiding and abetting instruction. It is well established that a defendant may be convicted of aiding аnd abetting even though he was not charged in that capacity. United States v. McKnight, 799 F.2d 443, 445 (8th Cir.1986). Aiding and abetting is an alternative charge in every count, whether implicit or explicit. Id. To convict under the aiding and abetting statute,
Although in this case the identity of a principal other than Clark is unknown, there is evidence that Clark once accompanied a person to the plots where the marijuana was grown. In addition, the fact that marked packets of marijuana seeds and growing records were found in Clark‘s shed supports the theory that Clark made his residence and outbuildings available for manufacture of marijuana. The evidence establishing Clark‘s guilt on the aiding and abetting count, althоugh certainly not overwhelming, supports submission of the issue to a jury. See, e.g., Ivey, 915 F.2d at 384 (evidence that defendant drove the principal to a Federal Express office sufficient to submit aiding and abetting in a cocaine conspiracy case).
A district court has wide discretion in formulating appropriate jury instructions. United States v. Walker, 817 F.2d 461, 463 (8th Cir.), cert. denied, 484 U.S. 863, 108 S. Ct. 181, 98 L. Ed. 2d 134 (1987). We find no abuse of that discretion here.
We agree with the reasoning of the district court on the suppression issue. With respect to the search, the holding that Clark had no expectation of privacy in the plots of marijuana was рremised on factual findings which we will not disturb unless clearly erroneous. See United States v. Schoenheit, 856 F.2d 74, 76 (8th Cir.1988). The district court expressly rejected Clark‘s testimony regarding the altitude of the helicopter and found heavy low-altitude air traffic over the site. It is not the function of this court to rewеigh evidence or determine issues of credibility. Haymon v. Higgins, 846 F.2d 1145, 1147 n. 4 (8th Cir.1988). The district court‘s analysis and application of Florida v. Riley, 488 U.S. 445, 109 S. Ct. 693, 102 L. Ed. 2d 835 (1989) and California v. Ciraolo, 476 U.S. 207, 106 S. Ct. 1809, 90 L. Ed. 2d 210 (1986) is consistent with our interpretation of those cases. See United States v. Hendrickson,
We also defer to the district court‘s findings with respect to the destruction of evidence. The government‘s destruction of evidence does not amount to a denial of due process unless the government аcted in bad faith, the evidence had exculpatory value and comparable evidence was not available to the defendant. United States v. Malbrough, 922 F.2d 458, 463 (8th Cir.1990), cert. denied, — U.S. —, 111 S. Ct. 2907, 115 L. Ed. 2d 1071 (1991). We will not disturb the district court‘s factual findings of no bad faith and no exculpatory evidence.
Clark also asserts thе district court erred in determining that the quantity of marijuana involved for sentencing purposes was 767 marijuana plants, since the actual plants had been destroyed. The determination of drug quantity is a factual finding which will not be disturbed unless clearly erroneous. United States v. Lawrence, 915 F.2d 402, 406 (8th Cir.1990). We are troubled by the actions of the Hamilton County Attorney in destroying the seized evidence. We nonetheless find that the district court‘s finding of quantity is not clearly erroneous. The district court‘s quantity determination was based on videotapes of the growing marijuana and the testimony of deputies who had counted the marijuana plants. We note that Clark conceded responsibility for 601 plants, representing the number of plants seized from the plots located near his house. The finding that Clark was responsible for all the plаnts is supported by evidence of similarity in manner of cultivation of all the plants. This evidence, adduced at the sentencing hearing and at trial, connected Clark to all the plots of marijuana.
For the reasons stated above, we affirm.
BEAM, Circuit Judge, concurring specially, with whom LOKEN, Circuit Judge, joins.
Although I concur in the result reached in this case, I write separately to express my discomfort with the aiding and abetting instruction and with the verdict form used in this case. Aiding and abetting was not charged in the indictment. My review of the record shows that the government prosecuted this сase throughout the trial as if Clark were the principal. One cannot aid and abet himself. United States v. Horton, 921 F.2d 540, 543 (4th Cir.1990), cert. denied, — U.S. —, 111 S. Ct. 2860, 115 L. Ed. 2d 1027 (1991). The request for an aiding and abetting instruction appears to have been an eleventh-hour attempt at a fallback theory of liability. Clark‘s defense was basеd on the idea that, since he did not own the land and did not reside there most of the time, the marijuana could have been planted by someone else. Advance knowledge of the government‘s intention to pursue an aiding and abetting theory might have changеd Clark‘s defense strategy. Although I agree that the facts are sufficient, though barely, to warrant submission of an aiding and abetting instruction to the jury, I would be more comfortable with the government‘s actions had Clark been afforded notice of the government‘s intention to proceed on an aiding and abetting theory.
The verdict form used in the case does not show whether the jury convicted Clark of committing the principal act or of aiding and abetting it. In this case, the distinction is of no consequence and constitutes harmless error because the evidence was sufficient to convict under either theory. Use of a special verdict form would obviate the potential for reversible error in a case where the evidence did not support a conviction as to either one or the other.
In addition, I note that, even though aiding and abetting is presumed in every indictment, last minute government tactics of this sort could, in another case, run afoul of constitutional fair notice requirements. See, e.g., United States v. Galloway, 976 F.2d 414, 433 (8th Cir.1992) (Bright, J., dissenting).