United States v. Kenneth Ray Martin ( 2001 )


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  •                    United States Court of Appeals
                                FOR THE EIGHTH CIRCUIT
                                      ___________
    
                                      No. 01-1102
                                      ___________
    
    
    United States of America,              *
                                           *
                       Appellee,           *
                                           *   Appeal from the United States
          v.                               *   District Court for the
                                           *   Southern District of Iowa.
    Kenneth Ray Martin,                    *
                                           *
                     Appellant.            *
    
                                      ___________
    
                                 Submitted: September 11, 2001
    
                                     Filed: December 12, 2001
                                      ___________
    
    Before BOWMAN, HEANEY and BYE, Circuit Judges.
                             ___________
    
    HEANEY, Circuit Judge.
    
    
         Kenneth Ray Martin appeals his jury convictions for conspiracy to distribute
    methamphetamine and possession of methamphetamine with intent to distribute. He
    argues that the district court1 erred when it provided supplemental instructions to the
    jury, and that he received ineffective assistance of counsel. We affirm.
    
    
    
    I.    BACKGROUND
    
           On August 3, 1999, narcotics agents entered a hotel room occupied by three
    individuals, including Martin. After the individuals gave the agents permission to
    search the hotel room, the agents discovered a cooler containing methamphetamine
    and cocaine. Martin admitted that he was transporting the cooler, but denied knowing
    that drugs were inside. Although Martin admitted he was paid several thousand
    dollars to transport the cooler, he informed the agents that he believed he was
    transporting money to the Mexican relatives of farm workers living in the United
    States.
    
           On August 25, 1999, Martin was indicted on one count of conspiracy to
    distribute methamphetamine in violation of Title 21 U.S.C. § 841(a), and on one
    count of possession of methamphetamine with the intent to distribute, in violation of
    Title 21 U.S.C. § 841(b). At trial, Martin stipulated that only methamphetamine was
    found in the cooler, and the district court ordered that no reference be made to any
    controlled substance other than methamphetamine. Later, during the jury
    deliberations, the jury posed the following question to the court:
    
          Did Ken Martin have to know that it was specifically methamphetamine
          in the cooler? In other words, for a guilty verdict to be passed, does Ken
          Martin have to know that the material in the cooler was
          methamphetamine, or simply that it was drugs (controlled substances)?
    
    
    
          1
          The Honorable Ronald E. Longstaff, United States District Judge for the
    Southern District of Iowa.
    
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    In response to this question, the district court answered as follows:
    
          [T]he answer is no. However, you are . . . instructed that in considering
          this issue, you must remember that the Government must prove all
          elements of both Count 1 and Count 2 to establish the Defendant guilty
          of one or both counts.
    
           After receiving these instructions, the jury returned a verdict of guilty. The
    district court sentenced Martin to two concurrent 121-month sentences, and this
    appeal followed.
    
    II.   DISCUSSION
    
           Martin first argues that the district court erred when it supplemented the jury
    instructions. Although he offers no legal support for his position, he contends that
    because methamphetamine was the only controlled substance referenced in the
    government’s indictment, the district court should have instructed the jury that it was
    required to find that Martin specifically knew methamphetamine was in the cooler.
    Martin also contends that such an instruction should have been made because no
    evidence of other controlled substances was presented to the jury.
    
          “The trial court has discretion about how to respond to a request by the jury for
    supplemental instructions.” Gasper v. Wal-Mart Stores, Inc., -- F.3d --, 
    2001 WL 1388849
    , *4 (8th Cir. Nov. 9, 2001); U.S. v. Beckman, 
    222 F.3d 512
    , 521 (8th Cir.
    2000). A trial judge must be impartial any time he communicates with the jury during
    deliberation. U.S. v. Behler, 
    14 F.3d 1264
    , 1270 (8th Cir. 1994). “When a jury
    explicitly requests supplemental instruction, a trial court must take great care to
    insure that any supplemental instructions are accurate, clear, neutral, and
    non-prejudicial.” U.S. v. Beckman, 222 F.3d at 521; United States v. Suppenbach,
    
    1 F.3d 679
    , 683 (8th Cir. 1993). “Further, the trial judge should answer ‘with
    
    
    
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    concrete accuracy,’ and ‘within the specific limits of the question presented.’” United
    States v. Behler, 14 F.3d at 1270 (citations omitted).
    
          We find that the district court’s supplemental instruction was accurate and
    appropriate. The court properly instructed the jury that Martin did not need to know
    the exact nature of the substance in his possession, only that it was a controlled
    substance of some kind. This is a correct statement of the law. See EIGHTH CIRCUIT
    MANUAL OF MODEL JURY INSTRUCTIONS § 6.21.841A, n.2 (West 2000); see also
    United States v. Noibi, 
    780 F.2d 1419
    , 1421 (8th Cir. 1986) (“The ‘knowingly’
    element of this offense refers to a general criminal intent, i.e., awareness that the
    substance possessed was a controlled substance of some kind.”)(citation omitted).
    The district court properly exercised its discretion when it answered the jury’s
    question.
    
           Martin also argues for the first time that his conviction should be reversed
    because he did not receive effective assistance of counsel. Generally, we do not
    consider ineffective assistance claims that have not first been presented to the district
    court because such claims “are best evaluated on the basis of facts developed outside
    the original record,” and are therefore “more properly raised in a habeas corpus
    petition brought under 28 U.S.C. § 2255.” U.S. v. Christians, 
    200 F.3d 1124
    , 1126
    (8th Cir. 1999) (citation omitted); United States v. Hawkins, 
    78 F.3d 348
    , 351-52 (8th
    Cir. 1996). On direct appeal, we will only consider such claims in exceptional cases
    where: (1) the district court has developed a record on the ineffectiveness issue, or (2)
    the result would otherwise be a “plain miscarriage of justice.” U.S. v. Santana, 
    150 F.3d 860
    , 863 (8th Cir. 1998). Neither extraordinary circumstance is present in this
    case, and thus we decline to address the ineffective assistance claim in this
    proceeding.
    
          Accordingly, we affirm.
    
    
    
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    A true copy.
    
          Attest:
    
             CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
    
    
    
    
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