Filed: Jun. 18, 1997
Latest Update: Mar. 02, 2020
Summary: United States Court of Appeals FOR THE EIGHTH CIRCUIT _ No. 96-3255 _ United States of America, * * Appellee, * * v. * * Bobby Michael Chard, * * Appellant. * _ Appeals from the United States No. 96-3990 District Court for the _ Western District of Missouri. United States of America, * * Appellee, * * v. * * Robert Donald James, * * Appellant. * _ Submitted: April 17, 1997 Filed: June 18, 1997 _ Before LOKEN, MAGILL, and MORRIS SHEPPARD ARNOLD, Circuit Judges. _ MAGILL, Circuit Judge. Bobby Mic
Summary: United States Court of Appeals FOR THE EIGHTH CIRCUIT _ No. 96-3255 _ United States of America, * * Appellee, * * v. * * Bobby Michael Chard, * * Appellant. * _ Appeals from the United States No. 96-3990 District Court for the _ Western District of Missouri. United States of America, * * Appellee, * * v. * * Robert Donald James, * * Appellant. * _ Submitted: April 17, 1997 Filed: June 18, 1997 _ Before LOKEN, MAGILL, and MORRIS SHEPPARD ARNOLD, Circuit Judges. _ MAGILL, Circuit Judge. Bobby Mich..
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 96-3255
___________
United States of America, *
*
Appellee, *
*
v. *
*
Bobby Michael Chard, *
*
Appellant. *
__________
Appeals from the United States
No. 96-3990 District Court for the
__________ Western District of Missouri.
United States of America, *
*
Appellee, *
*
v. *
*
Robert Donald James, *
*
Appellant. *
___________
Submitted: April 17, 1997
Filed: June 18, 1997
___________
Before LOKEN, MAGILL, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
___________
MAGILL, Circuit Judge.
Bobby Michael Chard and Robert Donald James were found
guilty by a jury of aiding and abetting the possession of
methamphetamine with the intent to distribute
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1)
and (b)(1)(B) (1994). In addition, the jury found James
guilty of conspiring to manufacture methamphetamine, in
violation of 21 U.S.C. § 846 (1994). Both Chard and
James appeal their convictions. Chard argues that his
conviction should be reversed because: (1) the district
court1 erred by denying his motion for severance; (2) the
district court erred by allowing the expert testimony of
John Meyers, senior forensics chemist for the Drug
Enforcement Agency (DEA); and (3) the evidence was
insufficient to support his conviction. James argues
that the district court erred by admitting evidence to
impeach the testimony of a defense witness. We affirm.
I.
On March 15, 1996, the police executed a search
warrant on Chard’s house in Independence, Missouri.
Chard was in the house when the police arrived and Chard
was arrested. Chard told DEA agent L. D. Mathews that
James and James’s family lived in the house. James was
not present when the police executed the search warrant.
Chard also told agent Mathews that Chard only maintained
a bedroom in the house. James was arrested later.
1
The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri.
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Upon searching Chard’s house, the investigating
officers found methamphetamine and numerous items related
to the manufacture of methamphetamine. In the basement,
the officers found a well-stocked methamphetamine-
manufacturing laboratory containing the ingredients used
to make methamphetamine as well as a
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variety of glassware used in the manufacture of
methamphetamine. For example, in the laboratory the
officers found a 6000-milliliter Erlenmeyer flask,
several round-bottom flasks, and several 1000-milliliter
Pyrex filter flasks. The officers also found a glass
container, still in the manufacturer’s packaging, labeled
Mallinckrodt hydriodic acid, two five-gallon containers
labeled hydrochloric acid, boxes of glass beakers and
test-tubes, several scales and balances, a hot plate, a
heat-sealer machine, empty acetone and Coleman fuel cans,
a bottle of nicotinamide powder that could be used as a
cutting agent for methamphetamine, and 240 bottles of
Mini-thin ephedrine tablets containing 250 tablets each.
Mini-thin tablets can be easily converted into a chemical
agent that is commonly used in the production of
methamphetamine.
In Chard’s bedroom, the investigating officers found
a digital scale, distribution-sized quantities of
powdered methamphetamine in plastic baggies, a copy of
the book “Secrets of Methamphetamine Manufacture,” a
binder that contained photocopied pages from that book,
and an address book listing an address where Mini-thin
ephedrine tablets can be purchased. In James’s bedroom,
the investigators found police scanners and radio
equipment of the type used by drug dealers for counter-
surveillance, a plastic baggie containing
methamphetamine, and some handwritten papers referring to
“dope” and “meth” dealing.
In Chard’s truck, the investigators found items
commonly used for the manufacture of methamphetamine,
including a plastic baggie containing 83 grams of
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nicotinamide powder, two 550-gram empty cans of red
phosphorous, a Red Devil lye can, and numerous acetone
and Coleman fuel cans. The investigators also found a
box containing 248 empty bottles of 250-count Mini-thin
ephedrine tablet bottles.
In James’s truck, the investigators found six, pint-
size jars of a liquid that contained methamphetamine, a
bottle of Mini-thin ephedrine tablets like the ones found
in Chard’s truck and the basement, a plastic baggie
containing 32.4 grams of red phosphorous, and one jar of
iodine crystals. A sample of the liquid from one of the
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pint-size jars of methamphetamine solution contained 279
milligrams per milliliter of D-methamphetamine, which can
produce 132 grams of powder D-methamphetamine. Further
testing of three of the five other jars revealed that
they also contained similar amounts of D-methamphetamine
solution which could produce between 114 and 143 grams of
powder D-methamphetamine each.
On April 12, 1995, Chard and James were both charged
by a grand jury with various crimes relating to the
manufacture and distribution of methamphetamine. On
April 17, 1995, Chard, who had been released pending
trial, went to the DEA office and gave to agent Mathews
an envelope of papers. The envelope contained lists of
items commonly used to manufacture methamphetamine, such
as filters, butane gas, trash bags, ice, gloves, water,
Coleman fuel, red phosphorous, and P2P, a reference to
the chemical agent methylamine which is used in the
process of cooking methamphetamine. The papers also
contained several drawings of apparatuses that are used
to manufacture methamphetamine. Some of the papers were
stained with red phosphorous. There were also papers
with notations of police scanner frequencies that could
be used for counter-surveillance efforts. Chard stated
that all of these papers belonged to James and that Chard
himself had nothing to do with any criminal activity that
may have been taking place in his house.
Before trial, Chard moved the district court to sever
Chard’s trial from James’s trial. The district court
denied Chard’s motion.
At trial, the prosecution sought to prove that Chard
and James had manufactured methamphetamine in Chard’s
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house using the ephedrine reduction method. After
several of the investigating officers testified regarding
the results of the search, DEA agent Mathews and DEA
senior forensics chemist Meyers explained to the jury
how, using the ephedrine reduction method,
methamphetamine could be manufactured by using the
chemicals found in the trucks and the house. Agent
Mathews also testified that, although he tested samples
of many of the other ingredients found in the house and
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the trucks, he did not test the contents of the bottle
labeled hydriodic acid, a necessary ingredient to produce
methamphetamine using the ephedrine reduction method.
Agent Mathews testified that he did not test this bottle
because the bottle was clearly labeled and found in its
original packaging, and also because the fumes of
hydriodic acid can be life threatening.
During Chard’s cross-examination of agent Mathews,
Chard attempted to elicit from agent Mathews the
statements Chard made when Chard was arrested.
Specifically, Chard wanted agent Mathews to testify that
Chard told agent Mathews that James and not Chard was
living in the house owned by Chard. James’s attorney
objected to this line of questioning, and the district
court sustained the objection. Chard was also not
allowed to ask agent Mathews about the allegedly
exculpatory statements that Chard made when Chard visited
agent Mathews at the DEA office.
During senior forensics chemist Meyers’s testimony,
the government asked Meyers if it were possible to
manufacture methamphetamine with the chemicals and
glassware found as a result of the search warrant using
the ephedrine reduction method. James’s counsel
objected, arguing that the equipment was incomplete and
that there was no evidence of hydriodic acid at the site.
The trial court overruled James’s objection after the
government noted that there had already been testimony
that hydriodic acid was found as a result of the search
warrant.
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The government also presented testimony from James
Anthony Childress and Michael Haas, who were both
convicted felons and who had both agreed to cooperate
with the government. Childress testified that James had
sold methamphetamine to Childress. Haas testified that
he had helped James obtain ingredients used to
manufacture methamphetamine, like those found in the
Chard residence and in the trucks belonging to Chard and
James.
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Michael Ryan, an old friend of James, testified at
trial on behalf of James. Ryan testified that at the
time of the search, James was no longer living in Chard’s
home. Ryan also stated that he and James are both
against the use of drugs and that Ryan himself has no
felony convictions. To rebut Ryan’s testimony, over the
objection of James’s counsel, the testimony of Missouri
State Highway Patrol Trooper James Wingo was introduced
at trial. Trooper Wingo testified that on October 8,
1994, while he was working as a narcotics investigator,
he had purchased from Ryan one ounce of methamphetamine
for $1000.
The jury found Chard and James guilty of aiding and
abetting the possession of methamphetamine with the
intent to distribute methamphetamine. In addition, the
jury found James guilty of conspiring to manufacture
methamphetamine. Both Chard and James appeal their
convictions to this Court.
II.
Chard argues that the district court erred when it
denied Chard’s motion to sever his trial from James’s
trial. We disagree.
Under Federal Rule of Criminal Procedure 8, the
joinder of two defendants is proper if the defendants
“are alleged to have participated in the same act or
transaction or in the same series of acts or transactions
constituting an offense or offenses.” Fed. R. Crim. P.
8(b); see also United States v. Rimell, 21 F.3d 281, 288
(8th Cir.) (“The prerequisites for joinder are liberally
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contrued in favor of joinder.”), cert. denied, 513 U.S.
976 (1994). In the instant case, Chard and James were
both charged with activities relating to the same
continuing criminal activity. Accordingly, their trials
were properly joined.
Even if joinder is proper, however, a district court
must grant a defendant’s motion to sever if it appears
that a defendant is prejudiced by a joinder for trial.
See
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Fed. R. Crim. P. 14. However, “[t]o obtain a reversal
for a failure to sever, defendant must show that the
district court abused its discretion, and that the
refusal resulted in severe or compelling prejudice.”
Remell, 21 F.3d at 289.
To demonstrate severe or compelling prejudice, Chard
argues that he was not allowed to ask agent Mathews to
repeat certain allegedly exculpatory statements that
Chard had made to agent Mathews before trial.
Specifically, Chard argues that if his trial had not been
joined to James’s trial, then Chard would have been
allowed to ask agent Mathews to repeat to the jury
Chard’s statement that James was in control of Chard’s
house and Chard’s statement that the papers Chard gave to
agent Mathews belonged to James.
However, such testimony by agent Mathews would have
been hearsay. See Fed. R. Evid. 801(c) (defining hearsay
as “a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted”).
This type of testimony is inadmissible. See Fed. R.
Evid. 802, 803. Thus, even if Chard had had a separate
trial, this testimony would still have been inadmissible.
Chard, therefore, has failed to make a showing of severe
and compelling prejudice from the joinder of his trial
with James’s trial. Accordingly, we hold that the trial
court did not commit reversible error when it denied
Chard’s motion for severance.
III.
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Chard contends that the district court erred by
admitting the testimony of DEA senior forensics chemist
Meyers. Chard argues that, because the existence of the
chemical hydriodic acid was never verified at the site of
the alleged methamphetamine laboratory and because
hydriodic acid is a necessary element to the production
of methamphetamine when using the ephedrine reduction
method, senior forensics chemist Meyers should not have
been allowed to testify that the ingredients found in
Chard’s
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home and in Chard’s and James’s trucks could be used to
manufacture methamphetamine using the ephedrine reduction
method. We disagree.
We review a trial court’s decision to admit expert
testimony for abuse of discretion. See United States v.
Brown, 110 F.3d 605, 610 (8th Cir. 1997). Under Federal
Rule of Evidence 703, an expert can base his opinion on
facts or data “perceived by or made known to the expert
at or before the hearing.” Fed. R. Evid. 703. Senior
forensics chemist Meyers based his testimony on the pre-
trial examination of photographs and samples taken from
the two trucks and Chard’s home. Senior forensics
chemist Meyers examined a photograph of the bottle
labeled as hydriodic acid, which was still in its
manufacturer’s packaging, and concluded that the bottle
contained hydriodic acid. In addition, agent Mathews, an
experienced DEA agent, testified that he had personally
examined the bottle at issue and concluded that it
contained hydriodic acid. Consequently, we hold that the
district court did not abuse its discretion by allowing
Meyers to testify because there was adequate foundation
for his testimony.
IV.
Chard argues that the district court erred when it
denied Chard’s motion for acquittal because there was
insufficient evidence to support the verdict. We
disagree.
When reviewing the sufficiency of the evidence to
support a conviction, we review the evidence “in the
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light most favorable to the government, resolving
evidentiary conflicts in favor of the government, and
accepting all reasonable inferences drawn from the
evidence that support the jury’s verdict.” United States
v. Smith, 91 F.3d 1199, 1200 (8th Cir. 1996) (quotations
and citation omitted).
In the instant case, the evidence was overwhelming
that Chard possessed methamphetamine with the intent to
distribute it. Chard’s own bedroom contained
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approximately 56 grams of methamphetamine that had
already been packaged in plastic baggies and was ready to
be distributed as well as two copies of an instruction
manual for the production of methamphetamine. In
addition, Chard’s truck contained ingredients used to
manufacture methamphetamine as well as empty containers
of ingredients used to manufacture methamphetamine.
Finally, Chard owns the house in which a fully-stocked
methamphetamine laboratory--complete with large
quantities of the ingredients and equipment needed to
manufacture methamphetamine--was found. Consequently, we
hold that, viewing the evidence in the light most
favorable to the government, there was sufficient
evidence to support Chard’s conviction.
V.
James argues that the district court committed
reversible error when it admitted the testimony of
Trooper Wingo because Trooper Wingo’s testimony
undermined the credibility of James’s witness, Ryan. We
disagree.
We will not reverse a trial court’s decision to admit
evidence absent a clear showing of abuse of discretion.
United States v. Roulette, 75 F.3d 418, 423 (8th Cir.),
cert. denied,
117 S. Ct. 147 (1996). Furthermore, we
have held that trial errors that do not affect
constitutional rights are subject to Federal Rule of
Criminal Procedure 52(a)’s harmless error standard, under
which “[a]n error is harmless if the reviewing court,
after reviewing the entire record, determines that no
substantial rights of the defendant were affected, and
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that the error did not influence or had only a slight
influence on the verdict.” United States v. Flores, 73
F.3d 826, 832 (8th Cir.) (quotations and citations
omitted) (construing Fed. R. Crim. P. 52(a)), cert.
denied,
116 S. Ct. 2568 (1996). In order to determine
the prejudicial effect of allegedly improper testimony on
the defendant’s right to a fair trial, we examine the
“context of the error, and the prejudice created thereby
as juxtaposed against the strength of the evidence of the
[defendant’s] guilt.”
Id. (quotations and citations
omitted).
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Assuming arguendo that the district court erred by
allowing Trooper Wingo's testimony, the prejudicial
effect of the allegedly improper testimony was at most
extremely slight when juxtaposed against the overwhelming
evidence otherwise presented against James. James’s
truck contained six, pint-size jars containing
methamphetamine solution, each bottle of which could
produce approximately 114 to 143 grams of powder D-
methamphetamine. In addition, James’s truck also
contained ingredients used to manufacture
methamphetamine. Moreover, James was living in the
house owned by Chard, a house whose basement contained a
well-stocked and well-equipped methamphetamine
laboratory. Finally, James’s own bedroom contained
methamphetamine, handwritten notes referring to “dope”
and “meth” dealing, and police scanners and radio
equipment of the type used by drug dealers taking
counter-surveillance measures. In light of the
overwhelming evidence of James’s guilt, we hold that the
alleged error was harmless.
VI.
For all of the foregoing reasons, we affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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