United States v. Vanover

Amеrica, Appellee, of States applica- United the Mathews standard applying to the seizure forfeitures to civil ble v. investiga- in a criminal involved

property Vanover, Appellant. Jane Barbara was no due tion, that there conclusion its 09-3571, Nos. 09-3599. is correct. Without violation process Appeals, Court of States not, violation, we need constitutional Eighth Circuit. immunity. not, qualified address do 13, 2010. April Submitted: to PPS’s concern sympathetic areWe 13, 2011. Filed: Jan. of the remedies may not avail itself that it En Banc Rehearing Rehearing and proce- criminal Arkansas under available 2, Denied March brought against are charges until dure En Banc Rehearing Rehearing spray- alleged theft of for the Walker 23, 2011.* Denied March that there are state presume we er. While to PPS to re- available civil remedies law does sprayer, PPS interest

cover its right postdeprivation that its argue care- We have was violated. process due parties’ the briefs and the fully reviewed arguments revolve and PPS’s arguments, it entitled claim that was solely around its is an process. due Ours predeprivation only address system, and we adversarial parties. We forwarded those issues lack potential not address therefore do procedures. postdeprivation adequate (address- Sanders, 93 F.3d at 1429-30 Cf. disposal for procedures ing the California pawn shop). seized from property III. judgment granting court’s The district affirmed. summary judgment is America, STATES UNITED Appellee, VANOVER, Appellant. Xavier Obell * rehearing en banc. grant petition Judge Bye Judge Riley would Chief Racette,

Gregory argued, Thomas Nich- Platt, brief, IA, Moines, olas W. on the Des appellant Xavier Vanover. for Obeli Moines, H. Payton, argued, Patrick Des IA, appellant for Barbara Jane Vanover. AUSA, Luxa, Mary argued, Clare Des Moines, IA, appellee.

RILEY, Judge,

Before Chief BENTON,

COLLOTON Circuit Judges.

PER CURIAM.

Obeli “Butch” Barbara Vanover and wife, Vanover, appeal “Barb” husband drug trafficking and convic- their firearm allege is insuf- tions. Vanovers there support convic- ficient evidence their court1 tions the district crafted ar- Butch also erroneous instruction. Gritzner, James E. 1. The Honorable United of Iowa. Judge Stаtes for the Southern District District gues denying put district erred his cer also a secret device listening on the suppress. motion to affirm. We CI. The CI went to Dale’s house and tried to I. BACKGROUND buy methamphetamine from her. Dale light When viewed most favorable told the CI she needed to use the $540 jury’s verdicts and all accepting buy methamphetamine sup- from her thereof, inferences in support reasonable plier. $540, Dale took the left the atCI see, Bordeaux, e.g., States v. house, her away. and drove Law enforce- Cir.2009), F.3d the facts officers, ment including Wagner, Detective are these: followed Dale to the Vanovers’ home while the CI waited at Dale’s house. Wagner Investigates A. Detective Dale went into the home Vanovers’ Vanovers buy methamphetamine. Barb was Wagner Detective Mesha serves on the home, but Butch was not. took Barb Dale (MINE) Mid-Iowa Narcotics Enforcement bathroom, to the master opened drawer, force, a cooperative among

task effort fed- they discussed how much metham- eral, state, and local law enforcement phetamine Dale needed. Dale asked for a agencies in Central Iowa. The MINE quarter ounce. Barb took some metham- illegal task force focuses on narcotics in- scale, phetamine, a baggies out of the terdiction in Des Moines and its suburbs. drawer. Because there was not enough August anonymous tipster methamphetamine in the drawer for the Wagner informed Detective the Vanovers relatively large quantity request- Dale had selling were and using methamphetamine ed, Barb told Dale to wait. Barb then went in their Des Moines home. In October to the garage Vanovers’ to obtain more Wagner Detective searched the Van- methamphetamine. garbage. overs’ curbside In the Vanovers’ thereafter, Shortly Barb returned to the trash, Wagner Detective found letters ad- bathroom baggie with another of metham- Vanovers, dressed to the Ziploc baggies phetamine. Barb quarter sold Dale a (so-called with torn bag- corners “corner methamphetamine ounce of in а baggie for gies”), jeweler’s baggy and a small contain- gave Barb then Dale a small “bo- $540. ing methamphetamine expert residue. As methamphetamine nus” of bag- a second witnesses would later attest at the Van- gie for arranging the sale the CI. trial, drug commonly pack- overs’ dealers Dale left and drove towards her home. age quantities illegal small of narcotics away Several blocks from the Vanovers’ baggies similar to those found the Van- home, law enforcement stopped officers garbage. overs’

Dale for a minor traffic violation. The law Investigation B. Unrelated Leads to enforcement officers asked per- Dale for the Vanovers person, mission to search her and Dale consented. The officers found the two 19, 2007, On December members of the baggies methamphetamine in Dale’s MINE task force were conducting surveil- just brassiere. Dale admitted she had lance of Debra Dale in a then-unrelated bought methamphetamine from Barb. investigation. Law enforcement officers suspected Dale was selling methamphet- C. Raid of the Vanovers’ Home gave amine. One officer a confidential (Cl) buy quarter afternoon, informant Later that Wagner ounce Detective $540 methamphetamine from Dale. The offi- obtained a warrant to search the Vanovers’ Office, led County task the Polk Sheriffs Butch p.m., 4:50 ten MINE Around home. they where inter- down basement executed the warrant. members force him for an hour. viewed about Detective arrival, man they Hispanic found a Upon mid-interview, came Wagner downstairs in a car bear- the Vanovers’ home outside recently Butch then admitted he had license Officers de- plates. Nebraska ing selling methamphetamine started man knocked and they while tained methamphetamine in the there was home. presence. their Barb answered announced methamphet- he Butch insisted did not use and let the officers inside the door amine. in- brought officers the man home. The including a persons, assembled all side and 2. Search of the Home Vanovers’ children,2 into the Van-

large number MINE task Members force living room. overs’ ga- home. In the searched Vanovers’ Warnings 1. Miranda bags rage, Ziploc officers found four con- taining grams of a mixture or sub- p.m., Wagner 5:00 Detective Around containing methamphetamine. stance rights. her Barb read Barb Miranda3 bags of methamphetamine four were found her Miranda she indicated understood large plastic a a shelf. bag atop inside In si- right and waived her to remain rights basement, empty Ziploc the officers found up- Wagner Detective took Barb lent. “1,000” baggies with the number written her. to a bathroom and interviewed stairs on them. first, illegal Barb insisted no At there were bathroom, In master the task force narcotics in the home and she did not deal Ziploc baggies, found members unused a methamphet- admitted drugs, but she used Ziploc baggie with a mixture or substance Eventually, however, admit- amine. Barb containing grams methamphet- 6.55 “in the methamphetamine ted she had sold it, baggies amine in and corner in several quantity there was past” and a small the trash. Scattered around the master methamphetamine in one of the bath- bedroom, purse, officers found Barb’s concluded, rooms. When the interview .4 which contained of a mixture grams or Wagner brought Barb down- Detective methamphetamine in- containing substance living stairs into room. Ziploc envelopes a and baggie, side ad- Butch then home from work. arrived Vanovers, including dressed to utili- Butch, handcuffed him to Officers escorted ty bill addressed to Butch. a Within room, and him on a living sat down bedroom, dresser master officers to Barb couch next and the unidentified grams of found .51 a mixture or substance Song, man. a Hispanic Officer Justin containing digital a methamphetamine, force the Ank- MINE task member from scale, drug paraphernalia. and related In read Mi- eny Department, Police then the Vanovers’ bed the master bed- randa warnings suspects aloud to all three lodged mattress between the and room— verbally on the they as sat couch. Butch (1) a spring High the box found —officers to un- acknowledged Song Officer he 9 Luger pistol; Point Model C9 mm derstood his Miranda agreed baggies; Ziploc Ziploc unused four an interview. $4,000 bаggies containing a total of in cash. Lonnie and Tom Deputies High fully Peterman Point operational, The load- Griffiths, Remington MINE task from mm ammuni- force members ed with Peters 9 Arizona, operating daycare. 2. Barb was 3. Miranda v. U.S. 86 an in-home S.Ct. (1966). 16 L.Ed.2d 694 tion, placed edge Carry near the of the head or a Firearm in [sic] Furtherance to Crime,” In a Drug [sic] bed. a safe the master bed- violation of 18 924(c)(1)(A)®. room, § U.S.C. Count officers found a Taurus PT-22.22 5 charged Butch ammunition, with pistol, being possession .22 12- a felon a ‍‌​‌​‌​​​‌​​​‌​‌​​‌‌‌‌​‌​‌‌​‌​​​‌​​​​‌​​‌‌‌‌​​​​‌‍caliber and .38 firearm, in violation of shotgun Ziploc gauge slugs, baggies some U.S.C. inside, 922(g)(1). scale, white residue a 100- gram weight, spoon, a small and other In June the district court held drug paraphernalia. three-day jury on superseding trial indictment. jury found the Vanovers

Including methamphetamine found guilty as charged Counts 1 brassiere, through in Dale’s officers found a total of response to a of interrogatories, series grams of mixtures substances con- also found the Vanovers conspired taining methamphetamine attributable to distribute, distributed, possessed during investigation. the Vanovers their with intent to “at distribute least 50 grams The law enforcement officers never found of a mixture and substance containing gave buy the Cl Dale to $540 methamphetamine.” quarter methamphetamine ounce of from Further, expert Barb. a fingerprint who The district court sentenced Butch to examined the firearms and ammunition did 420 months of imprisonment and Barb to find fingerprints. the Vanovers’ imprisonment. months of The Van- did find fingerprints expert of two appeal. overs persons High unidentified on the Point’s II. DISCUSSION

magazine. There is no evidence either firearm had been fired. Taurus fire- issues, Before our court are six which arm was not functional. fall into three categories. The first cate- gory arguments consists of Butch’s con- Proceedings

D. Prior cerning of the denial his motion sup- to 2008, September grand In a jury press. re- category The second includes the turned a seven-count superseding arguments indict- Vanovers’ regarding the suffi- ciency against Only ment of the to support Vanovers. Counts evidence their various through 1 5 convictions on Counts 1 5. appeal.4 through are relevant to this The third is category comprised 1 charged the Count Vanovers with con- arguments Vanovers’ about the district to spiracy methamphetamine, distribute in court’s instruction marshalling 4. Count 841(a)(1), §§ of 21 violation U.S.C. 841(b)(1)(B), and Count 2 charged 846. Suppress A. Motion to the Vanovers with distribution of metham- 1. Standard of Review phetamine, of 21 violation U.S.C. 841(a)(1), (b)(1)(C), § § and 18 U.S.C. 2. Our of standard review is narrow charged Count 3 with pos- Vanovers respect appeal with to Butch’s of the deni session intent to distribute metham- al suppress. of his motion Although we phetamine, of 21 violation U.S.C. review the district court’s legal ultimate 841(a)(1), (b)(1)(B), § § and 18 U.S.C. 2. novo, conclusions we de review the district 4 charged findings Count the Vanovers with “Use court’s factual for clear error. charged 4. Count 6 Butch with witness tam- counts. The district declared a mistrial 1512(b)(1). pering, in violation of 18 U.S.C. only, government as to Count 6 has deliberations, After four hours of an- retry declined to count. Count 7 a that 6, it nounced was "deadlocked” on Count but provision. forfeiture remaining reached to the had verdicts as 1114 and, a Butch Miranda 972, rights his as conse- Ingram, 594 F.3d v.

See United States Cir.2010). in- (8th suppressed the quence, “will affirm the should have We 976 sup- a Butch made in the criminating of motion to statements district court’s denial by it is various press unsupported highlights unless Butch minor basement. evidence, based on an errone- substantial law enforcement offi- inconsistencies law, or, applicable interpretation ous suppression hearing. testimony cers’ at his record, a it is clear on the entire challenge, based credibility opin- Butch a lodges v. Mu- made.” United States (1) mistake was have cred- ing the district court should noz, (8th Cir.2010) (quot- F.3d 920 590 no testimony that law enforce- ited Butch’s Hogan, v. ing United States F.3d him; Miranda ment officer read (8th Cir.2008)). testimony that nev- Barb’s she credited came saw Butch until after he out of er Legal Framework basement; discredited law en- Miranda, Supreme In Court testimony that Detec- forcement officers’ that procedural rules prophylactic created read the Miranda Song warnings to tive a must before custodial inter be followed Butch. Fifth rogation to ensure the commences tak argument Butch’s is well person mandate that Amendment’s “[n]o credibility “A made en. determination аny compelled ... criminal case shall be hearing a district court after on himself,” against to be a witness U.S. ‘virtually suppress merits a motion to Const, Miranda, amend. V. See U.S. ” United States v. appeal.’ unassailable on Supreme 1602. The Court 86 S.Ct. Frencher, (8th Cir.2007) 701, 701 custody “must suspect held a be warned GueUContreras, United States (quoting silent, right to remain that he has Cir.2006)). F.3d do We make any may he does be used statement not detect error in the district court’s clear him, and has a against as evidence that he credibility findings. The district court was right presence attorney, either testimony forced to choose between Id. appointed.” general, retained the or the law enforcement offi Vanovers any suspect from statements elicited cers, and court the the district credited of these rules are violation inadmissible testimony the officers. case-in-chief. See Stans government’s bury California, 318, 322, 511 U.S. supports Substantial evidence the dis- (1994) (per S.Ct. 128 L.Ed.2d finding Song trict that Detective court's curiam). Further, in order for a confes his Miranda rights. read Butch Detective during interroga sion a custodial obtained Song and Peterman each testified Deputy trial, govern tion at to be admissible read Butch his Miranda Song Detective knowingly, ment show the defendant must living room and Vanovers’ voluntarily, intelligently his waived he acknowledged Butch then understood Miranda, Miranda See rights. 384 U.S. cross-examination, rights. Depu- such On S.Ct. 1602. stated, ty emphatically Peterman “There’s that it question my no mind occurred Analysis I were because was there.” While there Did

i. First Issue: Detective among the officers’ some inconsistencies Song read Butch his regarding timing especially stories — rights? Miranda sequence of the events inside the Van- execution during overs’ home clearly the district argues Butch court court noted finding Detective read search warrant —the district Song erred in thoroughly in a these inconsistencies writ- In accordance with the implicit as aptly pointed ten order. district court sumption parties, we assume with (1) officers, professionals experi- out as deciding out the district court was re environments, with high-stress enced 3501(b) quired weigh § factors. Cf. ordinarily would remembеr the facts bet- States, Dickerson v. 530 U.S. (2) than suspects; ter nervous Miranda 2326,147 (2000) 120 S.Ct. L.Ed.2d 405 (3) routine; warnings are the officers 3501(b) § (discussing and stating “Mi had less incentive to lie than the Vanovers. randa and progeny govern its ... admissibility of statements during made ii. Second Issue: Did the district so, custodial interrogation”). Even finding err in Butch waived district court clearly did not err when it rights? his Miranda found Butch voluntarily, knowingly, and Butch opines certainly police “there was intelligently waived his Miranda rights. coercion” in interrogation his and con- again, Once Butch attacks the district cludes the in finding district court erred he credibility court’s findings even though voluntarily, knowingly, intelligently such findings are “‘virtually unassailable rights. waived his Miranda Butch argues ” Frencher, on appeal.’ 503 F.3d at 701 pass his statements do not muster under Guek-Contreras, (quoting 521). 468 F.3d at 3501(b), 18 U.S.C. which purports to set example, For Butch points us to his own forth factors a finder of fact should consid- (1) testimony that Detective Griffiths told er when deciding whether a Miranda Butch, you me, “if talk to I can probably 3501(b) waiver is valid. provides: Section (2) out”; help you Song Detective did not trial judge determining the issue read Butch the Miranda warnings; and of voluntariness shall take into consider- (3) Butch was cowed into confessing be ation all the surrounding circumstances cause he experience lacked interroga (1) confession, the giving of the including tions. elapsing the time between arrest and arraignment of the defendant making The district court did not credit Butch’s ..., the confession whether such de- testimony, and the credibility court’s find- fendant knew the nature of the offense ings were not clearly erroneous. Detec- ... of suspected which he was at the Wagner tive testified she promised never confession, time of making the any Butch type leniency or threatened whether or not such defendant was ad- Deputy him. Peterman and Deputy Grif- vised or knew that he required was not fiths testified no one any promises made any to make statement any and that leniency to Butch. When asked whether such statement could be against used he promise, made such a Deputy Griffiths him, whether or not such defendant stated: had been advised prior questioning to of [Ajbsolutely not. I never make that right counsel, his to the assistance of type of a anybody. statement to I’m not and whether or not such defendant judge. I’m not an attorney. I’m a

was without the assistance of counsel police officer. I can’t promises make questioned when and giving when such like that anyone. to confession. undisputed It is Butch has a long criminal presence or any absence of of the history and is not unfamiliar with law en- above-mentioned factors to be taken into Further, forcement officers. by consideration the as the dis- judge need not be trict recognized, conclusive on the issue of voluntariness Butch admitted of the confession. Detective Griffiths him told before the in- in of in all inferences favor those he “was trouble for reasonable that terrogation verdicts, “only if no drugs that were found” and reverse reason- and guns knew nature Butch thus have found [the Vanovers] the house. able could Unit- subject beyond of offenses. doubt.” guilty a reasonable Butler, (8th 955, 964 ed States v. 594 F.3d circumstances, totality of the Under the Cir.2010). to reweigh role is not “[0]ur support evidence to therе is substantial the credibility the evidence or to test of finding that Butch vol- court’s district “ witnesses,” ‘[questions because knowingly, intelligently and untarily, ” credibility province jury.’ are waived his Miranda rights. The officers Dugan, United States v. securing firearms after holstered their (8th Cir.2001) (quoting States premises; no one raised their voices or Chavez, argued; was not under the influ- Butch F.3d Cir. 2000)). any narcotics; and the ence of alcohol Although clothes. plain officers wore Analysis 2. during the

handcuffed and without counsel interview, Butch was his own home. i. there Third Issue: Is sufficient Deputy Peterman testified Butch was support drug Butch’s evidence to “calm, nice, pleasant, concerned.” Detec- trafficking convictions? Butch “very tive testified Wagner concede, if appears Butch to the district was no tension or conflict calm” and there suppress to failing court did not err in his “[tjhere Song air. Officer testified statements, incriminating sufficient evi- anything specific about wasn’t [Butch’s] supports drug trafficking dence his convic- indicate ... he was demeanor would tions. the district court not Because did kind of emotiоnal any under distress.” Butch’s denying suppression, err suffi- testified “re- Deputy Griffiths Butch was ciency argument a non-starter. is Butch Interestingly, Deputy knew laxed.” days selling from their cars to- Griffiths event, In any sufficient evidence car gether dealership at a Des Moines trafficking supports drug Butch’s convic Butch Deputy 1970s. Griffiths knew 1, 2, 3. See U.S.C. tions on Counts well call him enough to “Butch” and 841(a)(1), 841(b)(1)(B),841(b)(1)(C), §§ “hi, replied, Butch Tom.” “Obeli.” Butch’s ignore 846. Even if we incrimina adequately record reflects the offi- ting argu statements basement — Miranda gave warnings, cers Butch ably explicit confessions distribution Butch his an- waived thereafter methamphetamine possession with in swering questions. the officers’ methamphetamine tent to distribute —oth er evidence in the record sufficient to Sufficiency

B. of the Evidence guilt.5 establish Butch’s home was Butch’s Legal Standard drug dealing, filled indicia of includ ing relatively ‍‌​‌​‌​​​‌​​​‌​‌​​‌‌‌‌​‌​‌‌​‌​​​‌​​​​‌​​‌‌‌‌​​​​‌‍large quantity metham respect With the Vanovers’ drug paraphernalia, phetamine, weapons, sufficiency argu various $4,000 ments, in cash. Detective Griffiths light the evidence in the we view jury’s verdicts, powerful is a explained methamphеtamine most to the draw favorable 3, argument closing jury, superseding Butch's indictment. In Counts In his attorney selling was government alleged conceded Butch metham- responsi- Butch was phetamine at the time of his arrest. Butch’s grams for of a or ble at least 50 mixture argued government attorney only had not containing methamphetamine. substance drug quantities alleged established grams narcotic and 142 of a mixture or jury’s credible. We will not disturb the containing methamphetamine substance is verdicts. Dugan, See 238 F.3d at 1045 “definitely” a distribution amount. Detec- (leaving credibility questions jury); for the firearms, how Zi- tive Griffiths described see also United States v. Gaona-Lopez, scales, ploc baggies, para- and the other (8th 500, Cir.2005) (“[W]e 408 F.3d do further the phernalia drug trade. Dale not jury, sit as second [a] and we are bought testified she and her husband completely [u]nwilling usurp jury’s to from methamphetamine the Vanovers at unique in judging credibility role fifty least times between 2005 and jury witnesses. The is to free believe the from a ranging quarter gram amounts of a testimony any entirety, witness its (in ($80— $20-$25), exchange gram reject testimony аs untrustwor- $100), ($250- a quarter of an ounce omitted)). thy.” (quotations $540).6 Dale characterized the Vanovers as ii. Fourth Issue: Is there sufficient working together to sell their metham- support evidence to Butch’s felon in phetamine. For example, immediately be- possession of a firearm conviction? methamphetamine fore the resulting sale Sufficient evidence supports Butch’s fel- arrests, arrangements their Butch made on in possession aof firearm conviction. over telephone buy for Dale to meth- To convict Butch under 18 U.S.C. amphetamine from Barb. Dale testified § 922(g)(1), as set forth in Count methamphetamine the Vanovers’ business “ government ‘(1) required prove: was that, was so successful on several occa- previously had [Butch] been convicted of a sions, Dale had to wait line behind as punishable crime by a term of imprison- many methamphet- as five to ten other (2) ment exceeding year; one [Butch] buyers amine at the Vanovers’ home. On- (3) knowingly possessed firearm; [and] testified, Taylor terio while incarcerated the firearm in or ... [was] affected inter- arrest, with Butch after Butch’s Butch ad- ” state commerce.’ United States v. arranging mitted the methamphetamine (8th Clayboume, 415 F.3d Cir. Taylor sale to Dale and told the unidenti- 2005) (quoting Maxwell, United States v. Hispanic fied man was supplier. Butch’s Cir.2004)). Butch Hispanic man had fronted Butch the only challenges the second element. methamphetamine, and had come to the $4,000 Vanovers’ home to collect ex- In denying judgment Butch’s motion for —the act amount of cash found underneath the of acquittal, the district court observed Vanovers’ mattress. “[t]he case is a little thin on the knowl- element, edge” but held a jury reasonable

Although Butch contends Dale’s testi- could find Butch knowingly possessed the because, mony untrustworthy was among High Point underneath his mattress. The (1) things, other she ais confessed meth- district court did not err. It is not fatal addict; amphetamine she not coop- that, stresses, as Butch there is no direct erating with the MINE task force on De- 19, 2007; firearm, possessed cember evidence he law because enforcement $540, joint officers never рroof recovered the possession constructive apparently testimony found Dale’s to be sufficient to sustain a conviction under reported 6. Dale the Vanovers sometimes ac- picked up rich area” of Des Moines and furniture, cepted clothing, jewelry, and other garbage abandoned items to later trade to the explained merchandise in lieu of cash. Dale methamphetamine. Vanovers for "curbing she and her husband went over in “ ammunition, ... and High Point possession [the] 922(g)(1). § Id. ‘Constructive drug trafficking [sic][the] has domin- furtherance of to person if the ... is established the firearm is 1 through where forth in Counts premises 3].”7 over the set ion crimefs control, located, ownership, or dominion or [18 a conviction under “To secure ” at 795-96 Id. the firearm itself.’ over 924(c)(1)(A), government § U.S.C.] F.2d Boykin, 986 States v. (quoting United from which a rea- present must evidence Cir.1993)). (8th 270, 274 find a ‘nexus’ be- juror could sonable of the possession the defendant’s tween find Here, jury could a reasonable crime, drug charged firearm and the High Point knowingly possessed Butch possession that this had effect such pos jointly under constructive with Barb advancing helping for- ‘furthering, (1) in the home theory: Butch lived session v. drug crime.” United States ward’ (2) found; Butch the firearm was which Sanchez-Garcia, 939, 946 firearm was in which the slept on the bed omitted). Cir.2006) (citation “Accord- Butch hidden; to documents addressed that the defendant simul- ingly, evidence as the in the same bedroom were found drugs a fire- firearm; Taylor taneously possessed to and Butch admitted and $4,000 methamphetamine arm, alone, standing to his would not warrant he owed next firearm was hidden supplier, jury.” and the Id. submitting charge $4,000 Griffiths (citation omitted). As Detective “Instead, to cash. commonly trial, drug dealers at testified infer that the defen- must be able to protec and for intimidation use firearms of the firearm facilitat- possession dant’s dealer, Butch, drug was tion. a confessed crime, drug through evidence ed and, firearm as a likely possess more protection, that the firearm was used his protect a firearm to consequence, use drugs, near the or was in close kept was See, cash, family. methamphetаmine, during drug the defendant proximity to (holding there Boykin, 986 F.2d at 274 e.g., (citation transactions.” Id. 946-47 support was sufficient evidence omitted). conviction, § firearms 922(g)(1) where Rush-Richardson, United States in the defendant’s master bed were seized (8th Cir.2009). 906, 909 F.3d room, the mattress including one between from evidence exists Sufficient a room the defendant spring, and box jury could find the which a reasonable wife). shared with his each, felony “in furtherance of [a Vanovers crime], possesse[d]” there sufficient evi- drug trafficking iii. Fifth Issue: Is 924(c)(1)(A). support con- § dence to the Vanovers’ As High Point. 18 U.S.C. possessing a firearm indicated, victions for sufficient previously drug trafficking furtherance of a constructively possessed the Butch shows crime? anal jointly with Barb. The same firearm greater, if not ysis applies equal, with argue Butch Barb each the evidence lived in the same force to Barb. Barb 924(c) support insufficient to their was bed, slept Butch and in the same home as alleged Butch and convictions. Count found mail addressed to Barb was intentionally pos- “knowingly Barb firearms, Dale High near the Point. Barb also sold inсluding more one or sessed] government’s case-in-chief because it charged 4 also Butch and Barb Count felony possessing undisputed furtherance of not function- the Taurus in the Taurus was crimes, trafficking drug but the district al. allegations at the conclusion dismissed such

1119 methamphetamine in an adjoining bath- methamphetamine adjacent master firearm, room next to the concealed and bathroom. High

admitted she knew about the Point. Jury C. Instruction remaining element is whether there 1. Standard of Review is sufficient evidence from which a reason- able could find the Vanovers each The Vanovers criticize the dis possessed High Point in trict furtherance of court’s use of Instruction 20. Be drug trafficking a crime. The evidence is cause the object Vanovers did not to this sufficient. As we have repeatedly recog- court, instruction in the district we review expert nized—and as an witness testified only for plain error. See Rushr-Richard drug at the Vanovers’ dealers such trial — son, 574 F.3d at 910. plain error, To show as the often Vanovers use firearms for the Vanovers must establish intimidation, personal protection, and to (1) (2) “error”; there is an the error is See, safeguard drugs and cash. e.g., Boy- obvious, “clear or subject rather than to kin, Here, 986 F.2d at 274. the High (3) dispute”; reasonable the error “af placed Point was underneath a mattress fected [the rights, Vanovers’] substantial proximity large close to a quantity of cash which in ordinary case means” it packaging and materials and the same “affected the outcome of the district ammunition, methamphetamine, room as proceedings”; “the error drug paraphernalia. The High Point seriously fairness, integrity affect[s] placed edge near the of the bed for or public reputation judicial proceed cases, easy access. In other we have ings.” found sufficient evidence support — Marcus, v. -, States U.S. 924(c) § damning convictions under less 2159, 2164, 130 S.Ct. 176 L.Ed.2d 1012 See, e.g., circumstances. Rush-Richard- (2010) (quoting States, Puckett v. United son, 574 F.3d at (holding sufficient — -, 1423, U.S. 129 S.Ct. 924(c) conviction, § supported (2009)). L.Ed.2d 266 respect With where the defendant resided in the home element, third only an error affects sub- in which firearms wеre found “in a closet i.e., stantial if it prejudicial, in the bedroom hallway across the from proves defendant there is “a reasonable [the defendant’s] bedroom where cocaine probability that, but kitchen, [the error was found” and “in the fifteen to claimed], the result of the twenty away bedrooms, proceeding feet from the with would have been drug trafficking different.” paraphernalia and a United States bag- Benitez, v. gie residue”); Dominguez 74, 82, with cocaine 542 U.S. United States Sanchez-Garcia, 942-44, S.Ct. (quota- L.Ed.2d 157 (8th Cir.2006) omitted). 946-47 (holding there was tion The Vanovers “satisfy must 924(c) sufficient support § evidence to judgment court, of the reviewing in- conviction, where the firearm was identi- record, formed the entire prob- that the defendant’s, fied to be the expert wit- ability of a different result is sufficient to ness testified to link between drug undermine confidence in the outcome of firearms, dealing and quanti- “saleable proceeding.” Id. 124 S.Ct. 2333 drugs ties of drug packaging para- omitted). (quotation phernalia” adja- were found in a kitchen 2. Sixth Issue: Does Instruction cent to a bedroom where the firearm was require reversal? shelf). found on a closet The evidence is stronger Barb, 924(c)(1)(A), even respect Under 18 U.S.C. be- a defen- cause Dale testified that subject Barb sold Dale dant is to a mandatory minimum

1120 appeal, leaving if he or court or on the of district five-year imprisonment sentence (1) place circum- “during under those or carried a firearm conviction she used crime not affect the trafficking seriously to” a would fair- drug in relation stances ness, judi- a “in furtherance of integrity public firearm or possessed reputation or The su- drug crime. at It trafficking proceedings. of’ a cial Id. 656-57. was the Van- perseding charged unnecessary indictment for opinion the Kent decide 924(c). § prong under the second of overs the error the defendant’s whether affected pan- the rights, question that substantial tracking Eighth Cir- In Instruction 20— (A thought el was Id. at 656. “close.” Jury Instruction Model Criminal cuit decision that cites this dictum in later (2007), later amend- 6.18.924C which was holding subsequent reaching deci- “in further- district defined ed—the Rushr-Richardson, sion, 574 F.3d at see of’ as follows: ance 912, does not convert the dictum Kent in furtherance phrase “possessed holding in Kent was decided to a Kent. on have some means the firearm must of’ analysis, prong plain-error the fourth of respect or effect with purpose 1122-23.) plain simple. post at conspiracy meth- Cf. crime of to distribute of metham- amphetamine, distribution then, we four Since have decided more possession methamphet- or of phetamine jury involving cases similar erroneous in- distribute; its amine with the intent to based on the former model in- structions presence or involvement cannot be 924(c). case, In each struction result of accident or coincidence. trial, object defendant failed to at but po- must have the firearm facilitate or appeal, raised the error on and we consid- to facilitate offense of con- tential plain-error under a ered instruction methamphetamine, spiracy to distribute cases, standard of review. In two we re- pos- of or methamphetamine distribution ‍‌​‌​‌​​​‌​​​‌​‌​​‌‌‌‌​‌​‌‌​‌​​​‌​​​​‌​​‌‌‌‌​​​​‌‍convictions, holding versed that the erro- of with the methamphetamine session neous instruction affected the defendant’s intent distribute!!] rights substantial and that the error seri- United, fairness, ously integrity, affected the Kent, v. F.3d 642 States 531 public reputation judicial of (8th proceedings. Cir.2008), we that a materi- concluded Rushr-Richardson, 910-13; F.3d at erroneous. ally similar instruction was Brown, 754, v. United States 560 F.3d 766- “pos- that such We reasoned a definition Cir.2009). (8th In two more recent in furtherance of’ was almost iden- session decisions, jury we held that the erroneous Supreme tical to the definition of Court’s instruction did not affect the substantial “in relation to.” Id. at 654-55. Because defendant, given strength prior this court had concluded in a case the evidence in cases and those higher “in furtherance slightly that of’ is a narrow in which a firearm circumstances participation “during and level of than possessed “during would be relation Gamboa, to,” see relation United States v. (8th drug trafficking to” but not “in furtherance Cir.2006), we con- 439 F.3d drug States trafficking. of’ that an modeled on cluded instruction Mashek, 606 F.3d 931-32 Cir. In- Eighth Jury Model Circuit Criminal Coleman, 2010); United States v. F.3d erronеous struction 6.18.924C (8th Cir.2010). 501-02 While con- jury it “would to convict because allow the ” curring opinion surprising” it “not finding on the lesser ‘in relation to.’ finds “irreconcilable,” precedents these are at 655. affirmed We nonetheless conviction, tangle characterizes as “a because the defendant did and them panel post challenge conflicting prior opinions,” instruction they can The evidence here stronger believe and should be than in we Brown, The Mashek and Coleman Rush-Richardson and harmonized. where we Rush-Richardson, that a panels comparable both discussed held instructional error Broum, and we in turn discussed a rights. which affected defendant’s substantial Rush-Richardson, panels that the later followed the presume In the seized firearms Where, good in faith. as prior panel rule were located in different rooms from here, basis to there is a reasonable recon- quantities drugs measurable of in a —one before, that that cile decisions have come bag in a bedroom closet and two others in a a multi- proper panel is the course for of bag top a on of kitchen cabinets. 574 F.3d member court. (The in opinion at 912. Rushr-Richardson made much of the absence fingerprints of against think evidence We the the firearms, id., on the but none of these five comparable to the in Vanovers is cases involved evidence of the defendant’s Coleman, Mashek and and that the error fingerprints, point so the is immaterial in this case did not affect the substantial cases.) Broum, comparing when the In Mashek, police In Vanovers. one seized along firearm was found with a found loaded firearms defendant’s large amount of cash and a scale in a in methamphet house the same room with defendant, belonging vehicle but the manufacturing equipment amine and sur gun and vehicle were at a stored ware- equipment. 606 F.3d at In veillance 932. house, there is no indication that gun Coleman, a police seized loaded firearm loaded, only was and the controlled sub- quantities and distribution of cocaine and vicinity stance found in the was a small in ecstasy glove directly from a box front marijuana. amount of 560 F.3d at 761. in a of the defendant vehicle. 603 F.3d at Another firearm was found pounds with 35 case, police 501. this found a loaded marijuana, proof a bullet vest and am- a in High pistol Point under mattress munition, gun but this was located a bedroom, positioned near the Vanovers’ storage by unit rented a co-conspirator, access, edge easy of the bed for defendant, rather than and there is quantity same room with a saleable no that it indication was loaded.8 Id. The cash, materials, drugs, packaging $4000 scale, inference that the defendant in Broum drug pos- paraphernalia, a and other “in sessed these firearms furtherance of’ a adjacent to a room in which Barbara sold offense, drug trafficking methamphetamine. strong while Under those circum stances, enough to convince some that the instruc- probability we see no reasonable that the tional error should have outcome would have been differ been deemed harmless, 1123-24, if post ent had been instructed correct see at as ly meaning case, on the of “in powerful furtherance.” as the inference in this Despite government's mately obvious incentive view that factor aas basis for distin- highlight guishing evidence of a loaded firearm in a Brown from a case in which loaded 924(c) government's prosecution, strengthen argument brief firearms for harm- never ironically Brown asserted these firearms lessness. The concurrence asserts loaded, report comparison were while it did that a differ- that our of the facts of these cases principles ent count of conviction involved a "loaded with the "inconsistent traditional Magnum Appellee underlying .357 firearm.” See Brief of of stare decisis our common law 16, 32, 44, Brown, 1123-24, jurisprudence,” post at 560 F.3d 754. The issue at while at the here, moreover, panel charging is not whether same time that we follow what Karl thought important Llewellyn Brown it that the firearms described as "the orthodox doctrine unloaded, 1123-24, post precedent.” Llewellyn, were loaded or K. The Bramble cf. panels (1960). subsequent may legiti- Study whether but Bush on Our Law and Its prejudice to warrant proven and had sufficient kept a loaded where the defendants (Benton, J., at 656 plain-error in their bedroom relief. Id. pistol readily-accessible author). drug trafficking mate- drugs, with saleable

rial, of cash. We amount and substantial forth in Part II.B. For the reasons set have that the Vanovers therefore conclude below, question” I Kent’s “close believe plain error war- to demonstrate failed Subsequent was ill-considered. statement ranting relief. “might gone have in a different panels adopt Kent’s direction” and declined to III. CONCLUSION precedent. dicta as See Rush-Richard- district court is judgment The son, (Colloton, J., at concur- 574 F.3d 913 affirmed. Astrue, Passmore v. 533 ring). See also (8th Cir.2008) 658, (noting panel a F.3d 661 RILEY, part in Judge, concurring Chief dicta, judi- not follow defined as “[a] need concurring judgment. in the judi- delivering cial made a comment while majori- disagree with the respectfully I unnecessary opinion, cial but one that is to ma- analysis of the sixth issue. The ty’s in the case and therefore not decision Kent, v. 531 jority sidesteps States hap- But that is not what prеcedential”). (8th Cir.2008), rewrites United F.3d 642 began ques- as Kent’s “close pened. What (8th Brown, 754 Cir. v. 560 F.3d States circuit, became the law of the tion” dictum 2009), ignores much of United States polestar prejudice a determination. Rush-Richardson, 574 F.3d 906 v. Rush-Richardson, See, 574 F.3d at e.g., .2009). Cir (“The (majority opinion) 912 evidence here relatively compared is weaker ... Majority’s Analysis I. Kent, in said presented evidence where we A. Kent presented ques- the evidence a ‘close majority The does not recount the facts convinced, Thus, .... ... are in tion’ we Kent, unnecessary for saying was “[i]t in Kent and our light of our statement to decide whether the opinion the Kent Brown, in in Rush- holding the evidence the defendant’s substantial error affected suggests Richardson’s case Rush-Rich- panel thought a that the rights, question rights were affect- ardson’s substantial ” majority Ante at 1120. The was ‘close.’ ed.”).9 effectively strips majority facts of Kent are irrelevant to implies precedential force. See Drake Kent of its I disagree. the case before us. (8th Cir.1987) Scott, 812 F.2d 400 (“One liberty at panel of this Court is not in was arrested The defendant Kent disregard precedent a handed down bags two of crack cocaine and a fire- with panel.”). another See also Eisner v. Ma- Kent, person. arm on his See 531 F.3d cornber, 189, 205, 40 S.Ct. firearm, cash, U.S. A crack co- loaded (1920) (“And quot- what we have caine, L.Ed. clothing and men’s were later found opinion from the in that case cannot be 16-year-old ed girlfriend’s in Kent’s bedroom. dictum, having it fur- dicta, regarded it as obiter opined the Kent court was Id. for the conclusion question” “a whether the defendant nished entire basis close rights were affected.... panel was unanimous ardson’s substantial 9. The Rush-Richardson Rush-Richardson, point. on this See might gone a different Our cases have J., (“If (Colloton, compa- concurring) a at 913 ultimately agree with the direction ... but I question created a 'close' ... rable instruction light disposition case in of Brown of this Kent, in Brown and crossed threshold Kent.’’). ... then it seems to follow that Rush-Rich- reached.”); Burford, materially stronger Darr v. 339 U.S. is than the evidence 225-26, Brown, 70 S.Ct. 94 L.Ed. discussed in such that reversal was (“The (Frankfurter, J., dissenting) disclo- Brown, warranted in but not here. This is reasoning by which a conclu- sure of Brown, say agree not to I or that I remotely is reached cannot be deemed sion am able to reconcile Brown with some of process A implies dictum. decision our most recent cases this area of the it.”). requires which reasoning is, My law. Part II.A. point See if infra Brown, reversal was appropriate then question” whether the If it was “close probably reversal prejudice, appropriate in Kent suffered then here. defendant prejudice warranting plain-error there is majority attempts distinguish Although in the case at bar. relief facts, averring pres- Brown on its that the against strong, the Vanovers is tight ence of a nexus among loaded caught Barb nor Butch was as “red neither firearm, distribution-quantity drugs, and Kent, as the defendant who handed” tips each defendant the balance in the case caught with a firearm and distribu- at bar toward affirmance. The majority drugs person.10 on his tion-quantity emphasizes “there nois indication” the two firearms at issue Brown were loaded. B. Brown hand, at Ante 1121. On thе other there is Brown, revolver, In a .38 caliber ammu- no indication the two firearms in Brown cash, nition, scale, $16,000 and a small were unloaded either. marijuana from the amount of were seized court, parties, Neither the Brown at a warehouse. defendant’s vehicle stored witnesses, nor the district court made Brown, at A 761. semi- See any mention of whether the firearms were rifle, ammunition, pounds automatic and 35 loaded or unloaded in that case. Because in a unit marijuana storage were found the loaded or unloaded state the fire- by one of the defendant’s co-con- leased question arms awas the Brown court left spirators. Id. at 767-68. The Brown open, it could not have been relevant to its might sup- reasoned “evidence holding. parties lawyers The finding possessed that port Brown these may surprised Brown be to learn an out- firearms, support but ... would not a find- come-determinative factor in their case ing that Brown used or carried them.” Id. any was the absence of indication in the (emphasis original). at 768 Brown con- recоrd that the firearms were loaded. cluded the defendant’s substantial were affected and reversed. See id. majority’s analysis, which recasts holding by answering Brown’s an unasked

It strains reason to conclude the evi- case, question “in about that dence on the furtherance of’ element is inconsistent 924(c)(1)(A) § of the Vanovers’ convictions with the traditional principles of stare de States, 349, binding subsequent panels, In Weems v. United 217 U.S. is not on even 362, 544, (1910), subject 30 S.Ct. 54 L.Ed. 793 when matter seems similar in- volved.”). Supreme plain-error majority’s premise held Court "rule is unstated altogether by precedent,” applies plain-error controlled but that stare decisis may light a discretion that be exercised at "confers context seems doubtful of Weems. time, however, assume, any may present purposes, no matter what have been done For I as majority, precedent other some time.” See also C.J.S. does controls our (“[T]he discretionary grant deny § plain-error Courts 207 decision of decision to relief. If hoc, appellate panel plain totally dеny to notice error is our review were ad I would hoc, totally particu- plain ad and a decision one error relief for the reasons stated in Part panel particular lar on one occasion to do so II.B. below. (1991) (“Stare jurispru law 115 L.Ed.2d 720 underlying our common S.Ct. cisis Indus., Cooper evenhanded, Inc. v. Aviall dence. See ... promotes pre- decisis Servs., Inc., 157, 170, 125 S.Ct. 543 U.S. dictable, development and consistent of le- (“Questions 160 L.Ed.2d judicial gal principles, fosters reliance on record, merely lurk in the neither which decisions, and contributes to the actual and of the court nor brought to the attention perceived integrity judicial pro- considered as upon, ruled are not to be cess.”). decided as to constitute having been so require The statute does not the firearm Fall, precedents.” (quoting Webster “in be loaded to establish the furtherance 507, 511, 69 L.Ed. 411 U.S. S.Ct. 924(c)(1)(A). § of’ element. See 18 U.S.C. (1925))). effect, majority In overrules majority’s today But the decision will lead Brown, logic of K.N. Llew adhering panels presence future to view the of a (1930) (“Ev ellyn, The Brаmble Bush 63 distribution-quantity loaded firearm near rule, ery lays down a the rule of the case drugs as an outcome-determinative factor pri express case. The ratio decidendi analysis, drifting away in the prejudice case, ma facie the rule of the since it is the statutory language. from the ground upon which the court chose to rest But a later court can reexam its decision. C. Rush-Richardson through

ine the case and ... examination ... picture of the facts narrow the of what Rush-Richardson, 574 F.3d at actually ‍‌​‌​‌​​​‌​​​‌​‌​​‌‌‌‌​‌​‌‌​‌​​​‌​​​​‌​​‌‌‌‌​​​​‌‍can before the court and hold we adhered to Kent and Brown and re- ruling requires that the made to be under 924(c) versed another conviction on you stood as thus restricted.... And when plain-error grounds. In holding, so we past you find this said of a case know that (1) explicitly relied on the facts that “the overruled.”). it I effect has been do not government presented no definitive evi- Brown, I agree distinguish but cannot fingerprints dence of Rush-Richardson’s it.11 on, physical connecting Rush- very life of the law consists to a “[T]he to, firearms,” Richardson the “[o]ne large guidance extent in the both of offi- firearm, fingerprint was discovered on one private by cials and individuals determi- fingerprint and that was Rush-Rich- require nate rules which ... do not from ardsoris,” prosecutor’s the closing judgment them fresh from case to case.” argument the erroneous emphasized defi- (2d Hart, Concept H.L.A. The Law 135 of nition of “in furtherance of’ the 1994). Here, predictability ed. the instructions. Id. at 912.12 majority’s law suffers as the creative dis- majority ignores “im- or labels as practitioners wondering tinction leaves material” these happen important parts what will in the next case. three of See Tennessee, 808, 827, Payne v. 501 U.S. holding, Rushr-Richardson’s which all mili- majority says majority opinion 11. The “there ais reasonable terial the in Rush-Rich- decisions,” ardson now "immaterial.” Such reconcilia- [here] [these] basis to reconcile tion, view, my comport does not with the proper panel which "is the course for a of a Battaglia doctrine of stare decisis. v. Cf. multi-member court.” Ante at 1121. While I States, (2d F.2d 686-87 Cir. rule, agree disagree with the I that there is a 1962) J., (Friendly, concurring). reasonable basis here for reconciliation. majority by ignoring reconciles the decisions Similarly, reversing, 12. the Brown court Kent, precedent creating unsupport- the government's closing argu- remarked "the ed, never discussed "fact” distinction in ment exacerbated the error in the instruc- Brown, declaring reasoning Brown and the held ma- tions.” 560 F.3d 768. majority ical boxes in which attempts in favor of reversal of the Vanovers’ tate Brown, In the place example, Ante at Van- them. is convictions. case, fin- analysis revealed overs’ forensic irreconcilable with United States v. Mash- (8th High magazine, ek, Point’s gerprints Cir.2010), on the 606 F.3d 922 and United fingerprints belong (8th did not Coleman, but those States v. 603 F.3d 496 Cir. closing In ar- 2010). Butch or Barb. her either This is not surprising, because nei- prosecutor stated: gument, opinion ther the Mashek nor the Coleman judge that the of the instruction [P]art opinion mentions Brown.13 government that given you has is We now are faced with a tangle con- had the only prove need that the firearm flicting prior panel opinions. Under this to facilitate. We don’t have to potential rule, prior panel circuit’s when two or that either prove [of defendants] conflict, previous panel more decisions pointed gun that at Debra Dale on De- subsequent panel is free to follow deci- 19th, have to cember but what we do persuasive sion which is more and faithful you pres- that firearm was show NFL, to the law. See Williams v. ent, both of them knew that the firearm (8th Cir.2009), F.3d 879 n. 13 cert. present they and that had control — denied, U.S.-, 131 S.Ct. that firearm. over (2010). L.Ed.2d 413 Elsewhere I have weighing In not the absence of the Van- expressed my disagreement with this for- uniden- fingerprints, presence overs’ rule, prior panel joining mulation fingerprints, prosecutor’s or the clos- tified NFL, the dissent in Williams majority ignores Rushr- ing argument, Cir.2009) (Colloton, J., 934-35 these three holding Richardson’s dissenting from denial of rehearing en in favor of weigh facts are relevant and banc) (characterizing prior this circuit’s effect, majority today reversal. panel as “peculiar” fostering rule un- force, not to the Rushr- precedential lends law). predictability in the may But we majority’s opinion, but to the Richardson follow that rule here. Ruslv-Richardson, concurrence in which disapproved majority’s reliance on Analysis B. fingerprint evidence. See Rush-Richard- weighing conflicting prece- After our (Colloton, son, J., at 914-15 con- 574 F.3d dents, I conclude Mashek and Coleman (arguing finger- “the absence of curring) persuasive are more and faithful to the law in prints physical and evidence does not than Kent and Brown. Plain-error relief my materially advance view Rush-Rich- is not warranted here. showing ardson’s that the mistaken only slight There is difference between instruction affected his substantial “during in “in relation to” and element”). on the ‘in furtherance’ furtherance of’ standards. See United II. to Do What Gamboa, 796, States v. Conflicting A. Prior Panel Decisions Cir.2006). Supreme Court has ob- Kent, plain-error served that review should be precedential When the full force of is, “circumscribed,” power to be Brown, recog- and Rush-Richardson nized, “sparingly.” exercised Jones v. precedents our in this narrow area States, 373, 2090, 389, squeeze analyt- into the 527 U.S. 119 S.Ct. of the law do Brоwn, Mashek, parties bring argument. 13. The did not Coleman were decided after oral or Coleman to our attention. Mashek and (1999). “It is the rare

144 L.Ed.2d Joseph ZEE, Plaintiff-Appellant, VAN improper in an instruction will case which of a criminal conviction justify reversal objection no has been made in the when Marilyn HANSON, Defendant-Appellee. Kibbe, Henderson v. trial court.” U.S. No. 10-1588. 154, 97 S.Ct. 52 L.Ed.2d 203 (1977). Appeals, United States Court Eighth Circuit. present does not one of the

This case in narrow circumstances which the firearm Nov. 2010. Submitted: reasonably possessed have could been Filed: Jan. “during drug relation to” traffick- “in ing, drug but not furtherance of’ traf-

ficking, or the rare case which our cir- justifies plain-error power cumscribed reversal of the Vanovers’ convictions. The against strong. Vanovers is High large quanti- Point was next to a

ty materials, drug packaging of cash and methamphetamine,

the same room as am- munition, drug paraphernalia, edge easy

near the of the bed for access. Dale methamphet- testified Barb sold Dale adjacent

amine master bathroom. I would not exercise ‍‌​‌​‌​​​‌​​​‌​‌​​‌‌‌‌​‌​‌‌​‌​​​‌​​​​‌​​‌‌‌‌​​​​‌‍our discretion to notice Weems,

any plain error. See U.S. 362, 30 S.Ct. 544.

III. CONCLUSION fully

I opinion concur of the court respect through the first fifth is- issue, respect sues. With I sixth judgment only. concur in the

Case Details

Case Name: United States v. Vanover

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Jan 13, 2011

Citation: 630 F.3d 1108

Docket Number: 09-3571, 09-3599

Court Abbreviation: 8th Cir.