United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
      ___________

      No. 06-4157
      ___________

United States of America,               *
                                        *
            Appellee,                   *
                                        *
      v.                                *
                                        *
Carla Grace Engler,                     *
                                        *
            Appellant.                  *

      ___________
                                            Appeals from the United States
      No. 07-1104                           District Court for the
      ___________                           Northern District of Iowa.


United States of America,               *
                                        *
            Appellee,                   *
                                        *
      v.                                *
                                        *
Michael Thomas Gatena,                  *
                                        *
            Appellant.                  *

                                  ___________

                             Submitted: September 25, 2007
                                Filed: April 9, 2008 (corrected 4/15/08)
                                 ___________
Before BYE, BENTON, and SHEPHERD, Circuit Judges.
                            ___________

SHEPHERD, Circuit Judge.

       Following the district court’s1 denial of their motions to suppress evidence,
Carla Grace Engler and Michael Thomas Gatena were convicted by a jury. Engler
was convicted of: (1) conspiracy to manufacture 50 grams or more of pure
methamphetamine ending in June of 2005; (2) manufacture and attempted
manufacture of 5 grams or more of pure methamphetamine within 1,000 feet of a
school on December 30, 2004; (3) possession of red phosphorus with intent to
manufacture methamphetamine on January 30, 2005; (4) manufacture and attempted
manufacture of 5 grams or more of pure methamphetamine within 1,000 feet of a
school on June 5, 2005; and (5) failure to appear for trial on October 24, 2005. Gatena
was convicted of: (1) conspiracy to manufacture 50 grams or more of pure
methamphetamine within 1,000 feet of a school while on pretrial release, ending in
June of 2005, (2) manufacture and attempted manufacture of 50 grams or more of pure
methamphetamine on November 18, 2004, (3) manufacture and attempted
manufacture of 5 grams or more of pure methamphetamine within 1,000 feet of a
school on December 30, 2004, and (4) manufacture and attempted manufacture of 5
grams or more of methamphetamine within 1,000 feet of a school while on pretrial
release on June 5, 2005. Engler was sentenced to a stipulated term of 361 months
imprisonment. Gatena was sentenced to 470 months imprisonment. From their
convictions, Engler and Gatena appeal. Additionally, Gatena appeals his sentence.
The appeals are consolidated. We affirm the convictions and Gatena’s sentence.




      1
       The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.

                                         -2-
                                           I.


       We recite the facts in the light most favorable to the jury’s verdicts. United
States v. Honoarvar, 

, 1000 (8th Cir. 2007). Engler and Gatena were
involved in the manufacture, attempted manufacture and conspiracy to manufacture
methamphetamine. At some time prior to meeting Engler, Gatena started making
methamphetamine. Engler joined him in the manufacture of methamphetamine in
2004. In 2004, Engler and Gatena were a couple living in the same residence. Gatena
was the “cook” who manufactured the methamphetamine and Engler’s role was to
organize the other participants and obtain the precursors for Gatena’s use in the
manufacture. They used the red phosphorus method of making methamphetamine.
For this method, some of the necessary supplies include: pseudoephedrine, which can
be obtained from over-the-counter sinus medications; red phosphorus, which can be
obtained by removing the striker plate from matchbooks that have been soaked in
Heet2 or isopropyl alcohol; and iodine crystals, which can be made using hydrogen
peroxide, muriatic acid, and iodine. Engler and several other people visited numerous
grocery stores, discount stores and pharmacies to obtain products containing the
needed supplies. Once the supplies were obtained, Gatena would make the
methamphetamine while Engler and the others waited in another part of the residence.
Gatena’s children were present in the home while Gatena manufactured the
methamphetamine. The other people who helped them obtain the precursors would
be paid with a portion of the final product of the methamphetamine “cook”.


      Prior to their arrest, Engler and Gatena lived together at an apartment located
at Mud Lake on Rock Grove Court and later at a house located at 101 East 29th Street
in Dubuque, Iowa. Following their move to the 29th Street residence, Gatena

      2
        Heet is the brand name of a fuel additive which is designed for use as a gas-line
antifreeze and water remover. It is also commonly used in the manufacture of
methamphetamine.

                                          -3-
continued to maintain his access to the apartment at Mud Lake on Rock Grove Court.
Gatena “cooked” the methamphetamine at both the 29th Street and Rock Grove Court
addresses. The evidence established that Gatena stored, manufactured, and sold
methamphetamine at each of the residences which he shared with Engler.


      After receiving information about the manufacture of methamphetamine by
Engler and Gatena, law enforcement officers obtained search warrants for the two
residences shared by Engler and Gatena on three different occasions. Engler and
Gatena were subsequently indicted and arrested. Following the denial of their motions
to suppress evidence, they were tried by a jury and convicted.


                                         II.


      Engler argues that the district court erred in denying her motion to suppress
evidence obtained during the execution of three search warrants at the residence she
and Gatena shared at 101 East 29th Street, Dubuque, Iowa, as well as the January 30,
2005, warrantless search of her person and Gatena’s vehicle, which Engler was
driving.


       The search warrants on Engler’s residence were served on November 18, 2004;
December 30, 2004; and June 5, 2005. Engler argues that the search warrant of
November 18, 2004, was obtained based on a defective affidavit and that the district
court erred in denying her request for an evidentiary hearing under Franks v.
Delaware, 

(1978). Further, Engler alleges that the evidence obtained
as a result of the execution of the December 30, 2004, search warrant at her home
should have been suppressed due to errors in the application for search warrant.
Engler also argues that all evidence seized as a result of the execution of the
subsequent June 5, 2005 search warrant should have been suppressed as “fruit of the


                                         -4-
poisonous tree” because the basis for this search warrant was evidence and
information obtained as a result of the allegedly improper search warrants of
November 18, 2004, and December 30, 2004. Additionally, Engler contends that the
warrantless canine and inventory searches of the vehicle she was driving on January
30, 2005, were improper because the government failed to offer sufficient proof to
establish the existence of probable cause or an inventory exception to the general
prohibition against a search absent probable cause. Finally, Engler asserts that the
trial court erred by failing to follow the procedure established in United States v. Bell,

(8th Cir. 1978), with respect to out-of-court coconspirator statements.


       Gatena raises three issues on appeal. Like Engler, Gatena asserts that the
district court erred in failing to comply with the procedures set forth in Bell.3
Additionally, Gatena argues that there was insufficient evidence to establish that he
aided and abetted the manufacture of 50 grams or more of methamphetamine on
December 30, 2004. Lastly, Gatena avers that the district court erred when it
determined the drug quantity for which Gatena was held accountable for purposes of
determination of his offense level and sentence.


                                           III.


       We find that the searches were supported by probable cause, and the district
court properly denied Engler’s motion to suppress as well as her request for a Franks
hearing. On appeal of a motion to suppress, we review the factual findings for clear
error, and the legal findings are reviewed de novo. United States v. Bell, 

        Although they make the same legal argument with respect to Bell, only Engler
argues that the trial court improperly admitted oral statements of coconspirators, while
Engler and Gatena argue that the trial court improperly admitted photographic images
of text messages sent via cellular telephone.

                                           -5-
860, 863 (8th Cir. 2007). We review the denial of a Franks hearing for abuse of
discretion. United States v. Snyder, 

, 816 (8th Cir. 2008).


       We first address Engler’s arguments concerning the November 18, 2004, search
of the 29th Street residence. To prevail in her request for a Franks hearing, Engler
must demonstrate that a law enforcement official either recklessly or deliberately
included a false statement in the affidavits in support of the search warrants or omitted
a truthful statement from the affidavits. United States v. Brown, 

, 821
(8th Cir. 2007), cert. denied, No. 07-7292, 

(U.S. Feb. 19, 2008).
Further, Engler “must make a substantial preliminary showing of a false or reckless
statement or omission and must also show that the alleged false statement or omission
was necessary to the finding of probable cause.” United States v. Gabrio, 

, 883 (8th Cir. 2002). Such a showing is not easily made. 

show
that if the allegedly unsupported content in the warrant affidavit is ignored, the
remaining contents of the affidavit would not be enough to establish probable cause.

. We agree with the district court’s analysis that Engler cannot
establish the requisite preliminary showing of a false or reckless statement or omission
which was necessary to a finding of probable cause. Likewise, Engler failed to
establish that if the allegedly unsupported information is ignored the remainder of the
information presented in support of the search warrant would be insufficient to
establish probable cause.


      Engler challenges the denial of her request for a Franks hearing asserting that
law enforcement officers deliberately or recklessly: (1) failed to verify the information
provided by a confidential informant; (2) failed to attach information on one of the
two confidential informants; (3) used a confidential informant upon whose
information no prior arrests were based; (4) omitted addresses from paragraphs 2
through 8 of the affidavit; and (5) omitted statements indicating that Engler and
Gatena were no longer romantically linked. We cannot find that the district court
erred. Engler made these assertions without any supporting proof that they are

                                          -6-
accurate. She provided no evidence to establish that law enforcement officers
deliberately or recklessly omitted information in an attempt to mislead the issuing
judicial officer. Moreover, Engler did not provide an explanation for the absence of
such evidence. She failed to make a preliminary showing that a Franks hearing was
necessary and therefore the denial of the hearing was appropriate. If we were to
assume that Engler satisfied the first requirement for obtaining a Franks hearing, her
argument would still fail at the second step because the affidavits established probable
cause even absent the challenged information.


       Engler next asserts that because of the alleged omissions referenced above, the
November 18, 2004, search warrant was not supported by probable cause. Based
upon a thorough review of the affidavits in support of the search warrant application,
we find that the totality of the circumstances set forth in the application for the search
warrant of November 18, 2004, supported the finding of probable cause and
sufficiently established that the confidential informant was reliable. The attached
information sheet indicates that the confidential informant had supplied reliable
information in the past on multiple occasions, had not given false information in the
past and had no motive to falsify information in this case. Therefore, there was
sufficient proof of the informant’s reliability. See United States v. Sumpter, 

, 1220 (8th Cir. 1982).


       With regard to the December 30, 2004 search, Engler argues that the district
court erred in denying her motion to suppress evidence seized from her home during
that search because the search warrant was based on the allegedly impermissible
search of November 18, 2004. Engler also argues on appeal that because factual
errors appear in the Magistrate Judge’s report and recommendation, the affidavit for
search warrant must also have been confusing to the issuing judicial officer. Although




                                           -7-
factual errors appear in the Magistrate Judge’s report and recommendation4, the
affidavit for search warrant which was presented to and relied upon by the issuing
judicial officer, did not contain such errors5. Accordingly, the affidavit before the
issuing judge was not clearly in error and provided sufficient probable cause to justify
the issuance of the search warrant for Engler’s residence.


       Engler argues that the district court erred in denying her motion to suppress
evidence seized during the June 5, 2005 search of her residence because this warrant
was based on evidence or information obtained as a result of the prior allegedly
unconstitutional searches, and would therefore be “fruit of the poisonous tree.” We
have already found that Engler’s rights were not violated during the two previous
searches. However, if the information from those searches was removed from the
affidavit in support of the June 5, 2005 search warrant, there would still be more than
enough information remaining to establish probable cause for the issuance of the
search warrant. The additional evidence included in the affidavit, such as the June
2005 information regarding methamphetamine activity by Engler, pre-cursors found
in the mini-van outside her residence, and Engler’s trips between her home and the
mini-van immediately preceding police arrival, establish probable cause for the
issuance of that search warrant.


      In sum, Engler has failed to establish that probable cause was lacking for the
issuance of any of the three search warrants or that there was evidence to warrant a
Franks hearing. She produced no evidence of intentional misconduct or misstatement,

      4
       The Magistrate Judge's report and recommendation erroneously stated that the
complete red phosphorus lab was located at Gatena's Rock Grove Court address, when
in fact the complete red phosphorus lab was discovered at Engler’s 29th Street
residence.
      5
        This confusion on the part of the Magistrate Judge may have been caused by
the fact that two independent search warrants were simultaneously executed at both
the 29th Street and Rock Grove Court addresses on November 18, 2004.

                                          -8-
or any other evidence that directly controverts any of the information contained in the
three affidavits for search warrants.


       We now turn to Engler’s attack on the search of the vehicle she was driving on
January 30, 2005. Law enforcement officers are required to have probable cause to
search a vehicle without a search warrant. United States v. Donnelly, 

,
954 (8th Cir.), cert. denied, 

(2007). Probable cause is not the requisite
evidence necessary to support a conviction. 

cause is the “fair
probability that contraband or evidence of a crime will be found in a particular place.”

462 U.S. at 238). In order to determine if probable cause exists,
the totality of the circumstances must be assessed using a “common sense approach.”
United States v. Valle Cruz, 

, 703 (8th Cir. 2006).


      We find that there was probable cause to search the vehicle Engler was driving
on January 30, 2005. Officers were aware that Engler’s license to drive was
suspended. Therefore, they legitimately arrested her after observing her operate a
motor vehicle. Thereafter, a canine sniff of the exterior of the vehicle was conducted
and the dog alerted giving the officers probable cause to search the vehicle. See
United States v. $404,905.00 in U.S. Currency, 

, 647 (8th Cir. 1999)
(When a canine officer alerts on the exterior of a vehicle, the police officers then have
probable cause to search the vehicle without the necessity of obtaining a search
warrant). Further, at the request of the owner of the parking lot, the vehicle was towed
away following Engler’s arrest. Prior to the vehicle being towed, the officers
conducted an inventory search of the vehicle, as was required by the police
department policy. It is permissible for an officer to conduct an inventory search
pursuant to department policy prior to a vehicle being towed, protecting both the
vehicle owner and the officers. See United States v. Mayfield, 

, 1145
(8th Cir. 1998) (“The intrusion is justified by governmental interests in protecting the
owner’s property while it remains in police custody, in protecting the police against
claims or disputes over lost or stolen property, and in protecting the police from

                                          -9-
potential danger.”). Engler’s argument that there was insufficient evidence of the
police agency’s inventory policy is without merit. At the suppression hearing, Officer
Michael Kane testified that the Dubuque Police Department has a written policy for
inventory searches of vehicles subject to a private property tow. Officer Kane
identified the government’s exhibit 4 as the impound sheet from the private property
tow of Gatena’s truck following Engler’s arrest for driving on a suspended drivers
license. The impound sheet was prepared in compliance with the written department
policy and was admitted as evidence at the suppression hearing. An officer’s
testimony that the inventory search was performed within the police department’s
policy is sufficient. See United States v. Betterton, 

, 830 (8th Cir. 2005)
(policy not required to be in writing and officer testimony as to policy is sufficient).


                                          IV.


       Engler challenges the district court’s admission into evidence of several out-of-
court statements presented via the testimony of two witnesses. Nicole Leick testified
that, using money provided by Engler and Gatena, she obtained matches and
pseudoephedrine pills for Gatena’s use in the manufacture of methamphetamine and
that she saw Engler process the pills for subsequent use in methamphetamine
production. Leick testified that Gatena identified a room of the Mud Lake home as
“the cook room.” Engler’s hearsay objection to this statement was overruled without
analysis or explanation by the district court.


        Subsequently, Engler asserted hearsay objections to two other responses by
Leick. The first was her testimony that Gatena, carrying a container of ingredients
used in the manufacture of methamphetamine, stated that he was going home, and the
second was her denial that Gatena had told her what he did with the methamphetamine
that he had made.




                                         -10-
       Martin Junger testified that he has consumed methamphetamine manufactured
by Gatena, that Gatena has assisted him in the manufacture of the substance, and that
he had obtained precursors to the manufacture of methamphetamine with Engler.
Over Engler’s hearsay objection, Junger testified that Gatena told him that during the
search of November 18, 2004, authorities “found a cook going on at his house,” and
that he had been stopped by police with a bowl used to smoke methamphetamine and
a “full lab” in his vehicle, but that these items were not discovered.


       The district court’s decision to admit evidence is reviewed on appeal under the
deferential abuse of discretion standard. United States v. McCracken, 

,
542 (8th Cir. 1997). The district court’s decision will be affirmed unless there is a
“clear and prejudicial abuse of discretion.” 

asserts that the district court abused its discretion in admitting the
testimony noted above as the statements are hearsay and fall beyond the parameters
of the coconspiratorhearsay exception of Federal Rule of Evidence 801(d)(2)(E), and
that the district court failed to follow the procedure outlined in 

-
44 (setting forth the procedure to be follow with respect to the admission of
coconspiratorstatements under Federal Rule of Evidence 801(d)(2)(E)).


       “Rule 801(d)(2)(E) of the Federal Rules of Evidence provides that a statement
of a co-conspirator is admissible if the trial court determines by a preponderance of
the evidence that ‘the statement was made during the course and in furtherance of a
conspiracy to which the declarant and the defendant were parties.’” 

(quoting United States v. Roulette, 

, 425 (8th Cir. 1996)).
Pursuant to Bell, testimony as to an out-of-court statement of an alleged coconspirator
may be conditionally admitted as a coconspirator statement, provided that the district
court makes a determination at the end of the trial as to whether the government
demonstrated by a preponderance of the evidence that (1) a conspiracy existed; (2) the


                                          -11-
defendant and the declarant were members of the conspiracy; and (3) the declaration
was made during the course of and in furtherance of the conspiracy. 

. If the district court finds that the government has failed to satisfy all three
requirements, then the jury must be instructed to disregard the testimony, or a mistrial
may be granted; otherwise, the testimony is deemed admitted. 

       While the district court perhaps failed to follow with precision the Bell
requirements with respect to the cited testimony, we note that Engler did not ask the
court to do so, and, more importantly, Engler was not prejudiced as the record reveals
overwhelming evidence of the existence of a conspiracy which included Engler and
Gatena and that all of the challenged statements were in furtherance of that
conspiracy. United States v. Anderson, 

, 483 (8th Cir. 2001) (Where the
district court did not follow (nor was it asked to follow) the Bell requirements, a
defendant suffers no prejudice where overwhelming evidence of the existence of a
conspiracy exists and the relevant statements were made in furtherance of that
conspiracy.).


       Engler and Gatena also argue that the district court erred in admitting into
evidence photographic images of text messages sent via cellular telephone to Engler
from an unknown person while law enforcement officers were about to execute a
search warrant on Engler’s residence. They assert that the government failed to show
that the unknown declarant who sent the text messages was a co-conspirator.
However, the very content of the text messages establishes by a preponderance of the
evidence that the sender was a coconspirator. See United States v. Beckman, 

, 523 (8th Cir. 2000) (coconspirator’s statement may itself be used to determine
that a conspiracy existed). The text messages instruct Engler to quickly “clean” and
“flush” because the “cops [are] outside.” In advising Engler of the presence of
officers, the declarant goes on to specify there are “2 out front” and “1 at back door
around corner.” We find no abuse of discretion in the admission of this evidence.



                                         -12-
                                          V.


      Next, Gatena argues that the trial court erred in denying his motion for acquittal
because there was insufficient evidence to prove that he aided and abetted the attempt
to manufacture more than 50 grams of methamphetamine on December 30, 2004.
Specifically, Gatena argues that there was insufficient proof to establish that the
attempt to manufacture on that date would have produced more than 50 grams of
methamphetamine. We note, however, that the indictment alleges that the attempted
manufacture of December 30, 2004, was to produce more than 5 grams, not more than
50 grams, of methamphetamine.


       Federal Rule of Criminal Procedure 29 provides that a district court shall enter
a judgment of acquittal only if the evidence presented at trial was insufficient to
sustain a conviction. A district court must consider a motion for judgment of acquittal
with “very limited latitude” and must neither assess the witnesses’s credibility nor
weigh the evidence. United States v. Johnson, 

, 1048 (8th Cir. 2007).
We must view the evidence in the light most favorable to the government, resolving
evidentiary conflicts in the government’s favor and accepting all reasonable inferences
drawn from the evidence supporting the jury’s verdicts -- if there is an interpretation
of the evidence that would allow a reasonable-minded jury to conclude guilt beyond
a reasonable doubt, then we must uphold the jury’s verdict. 

reflects there was more than enough evidence to support Gatena’s
conviction for the December 30, 2004, attempt to manufacture more than 5 grams of
methamphetamine. Gatena’s truck was parked in front of Engler’s residence. In plain
view, officers observed seven transparent trash bags in the back of his truck which
contained large quantities of trash common to a methamphetamine lab. Further, the
evidence revealed that: Gatena previously sold methamphetamine out of Engler’s
house; at some point, Gatena had resided with Engler in the residence to be searched;


                                         -13-
Gatena allowed Engler to use his truck on December 28, 2004; when Engler used
Gatena’s truck she purchased pre-cursors, such as matches and pseudoephedrine, at
a local grocery store and Walgreens pharmacy; mail and other items belonging to
Gatena were found inside the residence and the truck; evidence of the manufacture of
methamphetamine was found inside the residence; and the trash bags in the back of
Gatena’s truck contained hundreds of matchbooks and empty blister packs
representing 2,016 pseudoephedrine pills which could theoretically yield 55 grams of
methamphetamine. Additionally, the jury had the opportunity to weigh Gatena’s
credibility. While Gatena claimed that he and Engler were out of town from
December 28th through the 30th, and that he had no involvement in the lab or the
waste found in his truck or the house, the grocery store manager testified that he saw
Engler using Gatena’s truck when she bought the matches on December 28, 2004.
Finally, the trash contained a receipt for the purchase of the pseudoephedrine on
December 28, 2004, from the Walgreens Pharmacy located near the grocery store
where Engler purchased the matches on the same day. Viewing the evidence in the
light most favorable to the verdict, we cannot find that the trial court erred in denying
Gatena’s motion for acquittal as to this count.


                                          VI.


       Lastly, Gatena argues that the district court erred in determining the drug
quantity for which he should be held accountable because the government failed to
establish the amount by a preponderance of the evidence. Gatena argues that the
government presented evidence of only 0.97 grams of actual methamphetamine with
a marijuana equivalent of 19.40 kilograms, which would be a base offense level of 16
for Guidelines purposes, while the district court adopted the presentence report
calculation of 995.28 grams of pseudoephedrine which translates to a base offense
level of 36. Gatena argues that there is no corroborative evidence of that amount, and




                                          -14-
the government failed to meet its burden of proof. We will uphold a sentencing
court’s drug quantity calculation unless it is clearly erroneous. United States v.
Serrano-Lopez, 

, 638 (8th Cir. 2004).


        Gatena has failed to establish that the district court’s finding as to the drug
quantity for sentencing purposes was clearly erroneous. Gatena was “well positioned
within the conspiracy to appreciate the scope of the conspiracy and the quantities
involved,” and the sentencing court properly found, by a preponderance of the
evidence, that his activity involving the drugs attributed to him was in furtherance of
the conspiracy and either known or reasonably foreseeable to him. See United States
v. Ramon-Rodriguez, 

, 942 (8th Cir. 2007), cert. denied, 

(2008). The district court correctly held Gatena responsible for the precursors and
methamphetamine obtained, used and manufactured by his coconspirators. See United
States v. Cordova, 

, 599 (8th Cir. 1998)(defendant responsible not only
for all acts and omissions committed, aided, abetted, counseled, commanded, induced,
procured and willfully caused by himself, but also for all reasonably foreseeable acts
and omissions of coconspirators in furtherance of the joint criminal activity). Gatena
was also properly held accountable for precursors his coconspirators obtained for his
use in manufacturing methamphetamine. See United States v. Voegtlin, 

,
748-49 (8th Cir.) cert. denied, 

(2006) (“Under the guidelines, in a
jointly undertaken criminal activity, a defendant’s sentence is determined based on all
reasonably foreseeable acts of others taken in furtherance of the jointly undertaken
criminal activity.”). The evidence before the district court was that: (1) Engler and
Gatena purchased pseudoephedrine, Heet and matches “almost daily” at a local
convenience store in 2004; (2) coconspirators testified to making at least 25 trips to
Madison, Wisconsin in the summer and fall of 2004, where they obtained between
1000 to 3000 pseudoephedrine pills per trip, each of which was capable of producing
55 grams of methamphetamine per week; (3) 2,504 empty pill blister packs which
represents 93 grams of pseudoephedrine were seized at Gatena's home on November
18, 2004; (4) 2,016 empty pill blister packs, representing 60 grams of
pseudoephedrine, were seized from Gatena's truck on December 30, 2004; and, (5)


                                         -15-
over 1000 empty pill blister packs, representing 38.8 grams of pseudoephedrine, were
seized at Engler's home on June 5, 2005. Thus, we find that the district court did not
err in attributing Gatena with a drug quantity that translated to a base offense level of
36 under the Guidelines.


                                          VII.


      Accordingly, we affirm the judgment of the district court.




                                          -16-