United States v. Wesley J. Durham ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-1020
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United States of America, *
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Appellee, *
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v. *
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Wesley J. Durham, *
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Appellant. *
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Appeals from the United States
No. 06-1021 District Court for the
___________ Western District of Missouri.
United States of America, *
*
Appellee, *
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v. *
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Erica J. Duncan, *
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Appellant. *
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Submitted: September 25, 2006
Filed: December 5, 2006
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Before WOLLMAN, BRIGHT, and BOWMAN, Circuit Judges.
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WOLLMAN, Circuit Judge.
Wesley Durham and Erica Duncan (hereinafter referred to by their last names
or collectively as “the defendants”) were convicted of attempting to manufacture five
or more grams of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(B), and 846, and possessing pseudophedrine with the intent to manufacture
methamphetamine, in violation of 21 U.S.C. § 841(c)(1). Duncan was additionally
convicted of conspiring to manufacture and distribute five or more grams of
methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846. The
district court1 sentenced Durham to 235 months of imprisonment and Duncan to 151
months of imprisonment. They appeal from their respective convictions and
sentences. We affirm.
I.
On or about November 1, 2003, Durham and Duncan, along with their four-
week-old son, Mason, moved in with Bruce Williamson. In the early morning of
December 12, 2003, Duncan discovered that Mason had stopped breathing.
Williamson drove Duncan, Durham, and Mason to a hospital, where Mason was
pronounced dead shortly thereafter. Upon learning of Mason’s death, Williamson left
the hospital and returned home. The doctors examined Mason and found no signs of
physical abuse.
Mason’s death was immediately reported to the Lee’s Summit police
department, and officers were sent to the hospital to investigate. After conducting
interviews with Durham, Duncan, and the hospital staff, the officers proceeded to the
couple’s residence to investigate further. The officers viewed the bedroom where
Mason slept and then proceeded to secure the residence pending the application for
1
The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
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a search warrant. During this process, they learned that Williamson had several
outstanding arrest warrants and took him into custody. A search warrant was
subsequently issued and the police searched the residence and garage. Items
consistent with the manufacturing of methamphetamine were located throughout the
residence, including the bedroom that Durham, Duncan, and Mason occupied. Several
weeks later, the results of an autopsy determined the cause of Mason’s death to be
Sudden Infant Death Syndrome (SIDS).
Durham and Duncan were subsequently charged with conspiring to
manufacture methamphetamine, attempting to manufacture methamphetamine, and
possessing pseudophedrine with the intent to manufacture methamphetamine. They
filed pre-trial motions to suppress evidence seized pursuant to the search warrant,
arguing that the warrant was overbroad, that the affidavit failed to establish probable
cause, and that the affidavit contained errors and omissions that rendered it defective.
Following a suppression hearing, a magistrate judge2 issued a report and
recommendation that the motions be denied. The district court adopted the report and
denied the motions.
Williamson, who had earlier pled guilty to a charge of conspiracy to
manufacture and distribute methamphetamine, testified on behalf of the government
pursuant to a plea agreement. He stated that he had observed Durham manufacture
methamphetamine at his (Williamson’s) apartment on at least eight to ten occasions
during the period from early November 2003 to December 12, 2003. Williamson
obtained the pills and other necessary ingredients for the manufacturing process. He
testified that he had observed Duncan tear from the striker plates the matches that
were used to create the red phosphorous needed during the manufacturing process.
Williamson further testified that he had witnessed Durham sell methamphetamine on
numerous occasions during the November-December period.
2
The Honorable Robert E. Larsen, United States Magistrate Judge for the
Western District of Missouri.
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Continuing with its case, the government called Corey Hall as a witness. Hall
had been to Williamson’s residence and had stayed there on at least one occasion.
During direct examination, the government asked Hall whether during an interview
he had had with Detective Dan Wood he had made statements regarding the
defendants’ use and manufacture of methamphetamine at Williamson’s residence.
Hall denied making any such statements. On cross-examination, Hall was asked
whether “the detective was spoon-feeding you what he would like you to say” and
“telling you the answers he wanted to hear,” to which Hall responded “[r]ight, he was
asking me questions that I knew nothing about and knowledge he already had and,
you know, pretty much telling me I knew about this when I didn’t.” Continuing, Hall
further testified that he had never seen the defendants cook, sell, or buy
methamphetamine. The government thereafter called Wood to impeach Hall’s
testimony. The district court overruled the defendants’ objections to this line of
questioning, but instructed the jury that it could consider Wood’s testimony only in
determining Hall’s credibility and not as proof of the matters asserted. Wood then
proceeded to testify that Hall had told him that he had seen Durham and Duncan use
and manufacture methamphetamine at Williamson’s residence.
The defendants attempted to call Karen Homes, Williamson’s ex-wife, as a
witness to impeach Williamson’s testimony. Sustaining the government’s objection
and rejecting the defendants’ offer of proof, the district court determined that Homes’s
proposed testimony would not impeach Williamson’s in-court testimony and thus did
not allow her to testify.
At sentencing, the district court gave both defendants a six-level enhancement
under section 2D1.1(b)(6)(C) of the sentencing guidelines for creating a substantial
risk of harm to a minor.3 The district court denied Duncan’s request for a minor-
participant reduction under section 3B1.2 of the guidelines.
3
The relevant section has been changed to 2D1.1(b)(8)(C).
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II.
Durham and Duncan raise several issues on appeal, which we will consider in
turn.
A.
We turn first to the contention that the district court erred when it allowed
Wood to testify and rejected Homes’s proposed testimony. “We review challenges
to a district court’s evidentiary rulings for abuse of discretion.” United States v.
Buffalo, 358 F.3d 519, 521 (8th Cir. 2004).4
As recounted above, Wood’s testimony was offered by the government to
impeach Hall’s testimony by showing that Hall had made prior statements to Wood
that were inconsistent with his in-court testimony. Rules 607 and 613(b) of the
Federal Rules of Evidence, when read together, allow a party to impeach its own
witness with extrinsic evidence of prior inconsistent statements. See id. at 522; FED.
R. EVID. 607, 613(b). Before such evidence is allowed, however, it must meet certain
requirements. First, under Rule 613(b), the inconsistent statement must not concern
a collateral matter and the witness must be confronted with the statement and afforded
an opportunity to explain or deny it. Buffalo, 358 F.3d at 524. Second, the court must
conduct a Rule 403 balancing test to determine whether the statement’s “probative
value is substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by consideration of undue delay, waste of time, or
needless presentation of cumulative evidence.” Id. at 524-25 (citing FED. R. EVID.
4
The government alleges that the defendants did not properly preserve their
evidentiary issues for appeal, thereby warranting only plain error review. See United
States v. Jones, 266 F.3d 804, 814 (8th Cir. 2001). After examining the record, we
conclude that the defendants’ objections were sufficient to preserve their arguments
on appeal, and we therefore review for abuse of discretion. See United States v. Ball,
868 F.2d 984, 987 (8th Cir. 1989).
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403). If the probative value of the evidence is found to outweigh its potential
prejudice, the statement is admissible. This latter requirement serves to prevent a party
from “call[ing] a witness, knowing him or her to be adverse, merely to make an end-
run around the rule against hearsay by impeaching the witness with a prior
inconsistent statement that the jury would not otherwise have been allowed to hear.”
Id. at 522-23.
We conclude that Hall’s prior inconsistent statements, as offered through
Wood’s testimony, satisfy the foundational requirements of Rule 613(b). They
involved matters that were material to the charges brought against the defendants, and
Hall was squarely confronted with the statements during his direct examination. Our
next consideration, therefore, is whether Wood’s testimony was admissible under Rule
403, which is a closer question.
The defendants argue that Wood’s testimony was highly prejudicial and had
little probative value and thus should have been excluded under Rule 403. Wood’s
testimony did indeed carry a risk of prejudice to the defendants, recounting as it did
a number of statements made by Hall that directly implicated both of the defendants
in the crimes with which they were charged and which would otherwise not have been
admitted into evidence. The defendants contend that Wood’s testimony lacked
probative value as impeachment evidence because Hall had merely denied making
certain statements to Wood and did not affirmatively damage the prosecution’s case
during his direct testimony. Hall’s testimony during cross-examination was not so
innocuous, however, as it suggested that the police had made up the incriminating
statements and attributed them to Hall in order to get a conviction. Moreover, his
statements that he had never seen the defendants cook, sell, or buy methamphetamine
essentially made him a witness for the defense. Thus, Wood’s testimony was of
probative value to the government, as it impeached Hall’s damaging testimony.
Wood’s testimony was thus both prejudicial to the defendants and probative to
the prosecution. We do not minimize the dangers involved when a party attempts to
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impeach its own witness, and the use of this type of testimony is not to be encouraged.
Nevertheless, we cannot say the district court abused its discretion by allowing Wood
to testify. The fact that Hall’s testimony affirmatively damaged the prosecution’s case
gave Wood’s testimony probative value greater than that found in other cases. See,
e.g., United States v. Logan, 121 F.3d 1172, 1175-76 (8th Cir. 1997); United States
v. Ince, 21 F.3d 576, 581 (4th Cir. 1994). Moreover, the potential prejudicial impact
of Wood’s testimony was lessened by the fact that the limiting instruction was given
prior to his testimony. Cf. Logan, 121 F.3d at 1176 (suggesting that a limiting
instruction is more effective when given prior to the testimony being entered).
Furthermore, Wood did not testify to or suggest that the defendants had admitted or
confessed to the crimes with which they were charged, and thus the risk of the
heightened prejudicial impact that such testimony carries was not present in this case.
Cf. Buffalo, 358 F.3d 519, 525 (quoting Ince, 21 F.3d at 581). In sum, then, we
conclude that the court did not abuse its discretion when it found that the probative
value of Wood’s testimony was not substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury.
Likewise, we conclude that the district court did not abuse its discretion when
it refused to permit Homes to testify, for nothing in her proposed testimony would
have contradicted Williamson’s testimony, nor would it have corroborated the
defendants’ theory that Williamson had been manufacturing methamphetamine while
living with Homes.
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B.
We next address whether the district court erred when it denied the defendants’
motion to suppress. We review a district court’s factual determinations supporting a
denial of a motion to suppress for clear error and its conclusions of law de novo.
United States v. Velazquez-Rivera, 366 F.3d 661, 664 (8th Cir. 2004).
The defendants contend that the evidence seized pursuant to the search warrant
should have been suppressed because the affidavit was insufficient to establish
probable cause and omitted information the inclusion of which would have rendered
it defective. “Probable cause exists when a practical, common-sense evaluation of the
facts and circumstances shows a fair probability that contraband or other evidence will
be found in the asserted location,” United States v. Adams, 110 F.3d 31, 33 (8th Cir.
1997). An issuing judge’s probable cause determination is entitled to substantial
deference. United States v. LaMorie, 100 F.3d 547, 552 (8th Cir. 1996). The affidavit
for the search warrant provided, inter alia, that 1) the defendants and Mason had been
living with Williamson for the past five weeks, 2) officers had been called to the Lee’s
Summit Hospital on December 12, 2003, to investigate the death of an infant, Mason
Durham, whom the defendants had brought to the hospital after discovering he was
not breathing, 3) the defendants accepted a ride to the hospital from Williamson rather
than call 911, 4) the defendants stated that they did not know their address when
questioned by the police at the hospital, 5) approximately a month before Mason’s
death, the police department had received two anonymous phone calls reporting a
methamphetamine lab at Williamson’s residence and concern for the health of an
infant present at the residence, and 6) Mason had tested positive for methamphetamine
at the time of his birth.
The defendants argue that this affidavit was insufficient on its face to establish
probable cause. We disagree. An informant’s tip can be relied on to support a
probable cause determination if the informant has provided reliable information in the
past or if the tip is independently corroborated. United States v. Caswell, 436 F.3d
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894, 898 (8th Cir. 2006). Here, the tips appeared to be sufficiently corroborated by
the fact of Mason’s death, as well as by his positive test for methamphetamine, and
they certainly raised suspicions as to whether Mason’s death was caused from an
exposure to methamphetamine.5 Further, the fact that the defendants could not tell the
police their address and that Williamson drove them to the hospital instead of calling
911 could give rise to a reasonable inference that Durham, Duncan, and Williamson
wanted to keep authorities away from the home and contributes to the suspicion
surrounding Mason’s death. In light of this information, we conclude that the
affidavit supported a finding that probable cause existed to believe that the young
child may have died from exposure to methamphetamine or that there would be
evidence of a methamphetamine lab found at the defendants’ residence.
The defendants further argue that information was omitted from the affidavit
which, if included, would have caused the judge not to issue the warrant. They assert
that the affidavit should have stated that the child’s body showed no signs of child
abuse, that the identity of the tipsters was known, and that the officers questioned the
tipsters’ reliability. To prevail on this argument, the defendants must “prove first that
facts were omitted with the intent to make, or in reckless disregard of whether they
make, the affidavit misleading, and, second, that the affidavit, if supplemented by the
omitted information, could not support a finding of probable cause.” United States
v. Allen, 297 F.3d 790, 795 (8th Cir. 2002). The omitted information pointed to by
the defendants does not support such a conclusion, irrespective of whether it was
excluded intentionally or recklessly. The fact that Mason showed no signs of physical
abuse would not have undermined the possibility that his death could have been
caused by an exposure to methamphetamine or the production of methamphetamine.
As for the informants, at the time the affidavit was submitted the officers knew only
that the two callers had more than a casual relationship. The informants’ identities
5
It is important to note that at the time the affidavit was submitted and search
warrant issued, the officers did not know the cause of Mason’s death and had not yet
received the autopsy report stating that it was a SIDS death.
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and supposed unreliability were mere speculations on the part of the officers based on
their assumption that the first informant was Williamson’s vindictive ex-girlfriend,
speculations that occurred before the officers had learned of Mason’s death and the
circumstances surrounding it. These speculations, if included in the affidavit, would
not have undermined a finding of probable cause. Accordingly, the district court did
not err in denying the motion to suppress.
C.
The defendants contend that the district court erred in determining that they
should receive a six-level enhancement to their base level offense under U.S.S.G. §
2D1.1(b)(6)(C) for creating a substantial risk of harm to a minor. We review a district
court’s interpretation and application of the sentencing guidelines de novo and its
findings of fact for clear error. United States v. Mashek, 406 F.3d 1012, 1017 (8th
Cir. 2005).
In imposing the enhancement, the district court pointed to evidence showing
that methamphetamine was manufactured in Mason’s room, that Mason had been
directly exposed to drug activity, and that chemicals found in the garage had been
moved there from Mason’s room. In light of these facts, the district court did not err
in imposing the enhancement.
Duncan argues that she should have received a base level reduction under
U.S.S.G. § 3B1.2 for having a minor role in the offense because her only involvement
was to strip match books for use in the methamphetamine manufacturing process.
Application Note 3(A) of § 3B1.2 provides that a base level reduction is appropriate
for a person who is “substantially less culpable than the average participant.” We
conclude that the district court did not err when it declined to grant the requested
reduction. Duncan took an active role in the manufacturing process and performed
one of the necessary steps in the process. As a result, she was not substantially less
culpable than the average participant and thus was not entitled to a reduction.
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Conclusion
The judgments are affirmed.
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