United States v. Larry D. Rogers ( 1998 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 98-1073
___________
UNITED STATES OF AMERICA, *
*
Plaintiff/Appellee, * Appeal from the United States
* District Court for the Western
v. * District of Arkansas
*
LARRY D. ROGERS, *
*
Defendant/Appellant. *
*
___________
Submitted: May 11, 1998
Filed: July 24, 1998
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Before BEAM and MURPHY, Circuit Judges, and MELLOY,1 Chief District
Judge.
___________
1
The Honorable Michael J. Melloy, Chief Judge, United States District Court
for the Northern District of Iowa, sitting by designation.
Melloy, Chief District Judge.
Larry D. Rogers was tried and convicted of possession of methamphetamine
and marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1), and
possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1)
and 924(a)(2). The district court2 sentenced Rogers to 235 months custody to be
followed by five years supervised release. Rogers challenges the issuance and
execution of the search warrant in this case, failure to grant his severance motion,
sufficiency of the evidence, and a sentencing issue. We affirm.
I. Background
In February of 1997, a confidential informant named Mark Gamble told the
Fort Smith police that Larry Rogers was selling methamphetamine and marijuana on
property that Rogers owned in rural Sebastian County, Arkansas. During the
ensuing investigation, Narcotics Detective Sergeant Grizzle of the Fort Smith Police
Department and Investigator Hollenbeck of the Sebastian County Sheriff’s
Department located the rural acreage where they believed that Larry Rogers lived.
Two motor homes were located on this acreage, as well as a metal barn that was
partially under construction. By examining tax records, the investigators determined
that Rogers owned a motor home, and they assumed that one of the two motor
homes on Rogers’ property belonged to him. (They were unable to determine which
of the two motor homes was his because they were unable to see a license plate tag
or a VIN number on either of the motor homes.)
2
The Honorable Jimm Larry Hendren, Chief Judge, United States District Court
for the Western District of Arkansas.
2
Hollenbeck and Grizzle then gave Gamble $50 in cash with which to buy
drugs from Rogers. Gamble testified at trial that he went to Rogers’ property to buy
drugs on the evening of April 29, 1997, and that he talked with Rogers and two
other men in one of the motor homes (which the police later named “Motor Home
#1"). After the other men had left, Gamble asked Rogers if he could buy some
marijuana from him and Rogers said that he could, but that he should meet Rogers
in the driveway. When Gamble met Rogers in the driveway, Gamble bought a
quarter ounce of marijuana from Rogers for $25. Hollenbeck and Grizzle included
information about this transaction in the search warrant that they prepared. The
court then issued the search warrant.
When the search team arrived at Rogers’ property on the afternoon of April
30, 1997, nobody was there. The officers entered Motor Home #1 and found
clothes, dirty dishes, and bedding inside the motor home, indicating someone was
living there. A package of methamphetamine was found in the cushion of a chair.
In the same chair, officers found a loaded Smith and Wesson .44 magnum revolver
and holster. On a kitchen cabinet near where the revolver and methamphetamine
were seized, officers found a set of triple beam scales. Elsewhere in the motor
home, officers found a loaded 12-gauge, single shotgun and a loaded .22 semi-
automatic rifle.
In addition to the methamphetamine found in the cushion of the chair, officers
found other drugs in Motor Home #1. Inside a metal can, there were large plastic
bags of marijuana. Inside a red and white thermos, there was more
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methamphetamine. Inside a brown leather shaving kit bag, there was over $32,000
in cash, methamphetamine, and a set of small digital scales. In total, officers found
about 1.44 pounds of methamphetamine and over 3 kilograms of marijuana.
The investigators searched the drawers of a desk in Motor Home #1, where
they found two documents with Larry Rogers’ name on them: (1) a document
entitled “Hourly Vacation,” which was dated 3-31-97 and which showed Rogers’
vacation schedule, and (2) an envelope from the circuit clerk’s office addressed to
Larry Rogers, which contained his divorce decree. Moving outside of Motor Home
#1 to the barn, officers found a small blue pipe which they believed had been used
to smoke marijuana, as well as a syringe. They found nothing inculpatory in Motor
Home #2.
After the search concluded, the officers were able to determine that Motor
Home #1 was registered to Glen Woolsey and that Motor Home #2 was registered
to Larry Rogers. Woolsey testified at trial that he had purchased Motor Home #1 in
September of 1996, and that he had taken it to Rogers’ property in October of 1996.
Woolsey said that he and other people drove the motor home a small amount during
the next seven or eight months, but that it was usually parked next to the barn on
Rogers’ property. Woolsey himself did not stay in the motor home when it was on
Rogers’ property, although he visited Rogers often. Woolsey also said that he had
seen Rogers’ girlfriend prepare food on the stove in Woolsey’s motor home.
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II. Discussion
Rogers argues that (1) the district court erred in denying his motion to
suppress; (2) the district court erred in denying his motion to sever the two drug
offenses from the firearm offense; (3) the district court erred when it applied an
enhancement for possession of a firearm during a drug offense; and (4) there was
insufficient evidence to support the jury’s verdict. We examine each of these
arguments in turn.
A. Motion to Suppress
The main issue in this appeal is whether the search warrant described the
directions to Rogers’ property with sufficient particularity. Rogers claims that the
search warrant was insufficient because it did not describe the final turn that the
officers had to make before reaching Rogers’ property. If the officers followed the
directions on the search warrant, Rogers asserts, they would have exhausted the
directions on the warrant, yet there would have been nothing in sight to search.
Because the search warrant used to obtain the evidence failed to particularly
describe the place to be searched, Rogers argues that the evidence seized through
the search should have been suppressed.
The government concedes that the affidavit omitted the final turn that the
officers had to make in order to find Rogers’ property, and that without this final
direction, the search warrant could have led officers to either the Rogers property or
the neighboring Crook property. Although so conceding, the government asserts
that the search warrant was still sufficiently particular to enable the officers to find
Rogers’ property with reasonable effort and without a reasonable probability that
another place might have been mistakenly searched.
5
The Fourth Amendment states that “no [w]arrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.” U.S. CONST. amend.
IV. In the Eighth Circuit, the test for determining the sufficiency of the description
is whether the place to be searched is described with sufficient particularity as to
enable the officer executing the search warrant to locate and identify the place to be
searched with reasonable effort, and without a reasonable probability that another
place might be mistakenly searched. United States v. Valentine, 984 F.2d 906, 909
(8th Cir. 1993), citing United States v. Gitcho, 601 F.2d 369, 371 (8th Cir. 1979),
cert. denied, 444 U.S. 871 (1979). We will uphold the district court’s denial of a
motion to suppress unless it rests on clearly erroneous findings of fact or reflects an
erroneous view of the applicable law. United States v. Berry, 113 F.3d 121, 122
(8th Cir. 1997).
The district court3 found that the directions on the search warrant did indeed
omit the last turn that the officers had to make before finding Rogers’ property, and
that because of this omission, the directions could have led officers to either the
Rogers property or the Crook property. The district court went on to find that even
though the directions led to two different entrances to two different properties, the
directions were not unduly confusing because the Crook property had a new white
home and chicken broiler houses, which did not fit the description in the affidavit.
In contrast, the other entrance to the Rogers property did fit the description. Thus,
3
The district court adopted the Report and Recommendation written by the
Honorable Beverly R. Stites, United States Magistrate Judge for the Western District of
Arkansas.
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because the Crook property could not be confused with the Rogers property, the
description in the search warrant was sufficiently particular to locate and to identify
the premises to be searched: the officers executing the warrant could rely on the
description to find the Rogers property with reasonable effort and without any
reasonable probability of mistakenly searching the Crook property.
We have reviewed this finding and hold that it is not clearly erroneous and
that it does not reflect an erroneous view of the applicable law. Thus, the district
court did not err in refusing to suppress the evidence seized through the execution of
the search warrant.
B. Motion to Sever
Rogers next argues that the court erred when it refused to sever the felon-in-
possession charge from the drug charges. He claims that he was irreparably
prejudiced when all of the counts were tried together because evidence of a prior
conviction is the “kiss of death.”
If this issue is preserved for appeal, we review whether the district court
abused its discretion and thus prejudiced Rogers’ right to a fair trial. United States
v. Robaina, 39 F.3d 858, 861 (8th Cir. 1994). If this issue is not preserved for
appeal, the standard of review is plain error. United States v. Bordeaux, 84 F.3d
1544, 1547 (8th Cir. 1996). Under a plain error standard, a defendant must show
prejudice affecting his substantial rights and an extraordinary reason to reverse, in
addition to an abuse of discretion. Id.
The government contends that Rogers did not preserve this issue for appeal
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because he failed to renew his severance motion at the close of either the
government’s case or the defendant’s case. Contrary to the government’s assertion,
“[t]his circuit has rejected the rigid requirement that the defendant must renew his
severance motion after the close of the government’s case, and instead we consider
the actions taken by the defendant in light of the purposes for requiring the motion’s
renewal.” United States v. Dobin, 938 F.2d 867, 869 (8th Cir. 1991), citing United
States v. Thornberg, 844 F.2d 573, 575-76 (8th Cir. 1988), cert. denied, 487 U.S.
1240 (1988). Instead of adhering to a rigid rule, we examine whether the two main
concerns underlying the rule have been satisfied. These concerns are “(1) the
appellate court’s practical ability to determine whether the appellant knew of the
error and consented to it; and (2) the unfairness of reversing the trial court on an
issue that it did not have the opportunity to consider.” United States v. Westbrook,
896 F.2d 330, 337 (8th Cir. 1990). This means that even if Rogers failed to renew
his motion for severance, he may not have waived his objection, so long as he did
not consent to the error and so long as the district court had the opportunity to
consider his motion with full knowledge of the situation.
The record before us fails to reveal whether Rogers did in fact renew his
pretrial severance motion at the close of the government’s case, at the close of the
evidence, or at the time evidence was introduced. The record also fails to indicate
whether the evidence admitted at trial was materially different than what Rogers
anticipated the evidence would be when he made his pretrial motion to sever.
Compare Dobin, 938 F.2d at 869 (“When a motion is made based on facts believed
to exist, and there is no material change with respect to what happens at the trial,
then a renewed motion for severance is not necessary.”). However, even giving the
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defendant the benefit of reviewing the decision under an abuse of discretion
standard, we find that the district court did not abuse its discretion.
Rogers alleges that he suffered substantial prejudice when the jury learned
that he had already been convicted of two felonies, and that the district court
thereby abused its discretion in refusing to sever or to bifurcate the felon-in-
possession count. The government argues that the district court did not abuse its
discretion in refusing to sever this count because the parties stipulated that Rogers
had been convicted of two felonies, and this stipulation removed any testimony on
the underlying felonies. The government relies on United States v. Brown, 70 F.3d
979 (8th Cir. 1995) to support this argument, asserting that Brown stands for the
proposition that a stipulation of the felony convictions removes any chance of
prejudice because there is no discussion of the underlying prior felony convictions.
In Brown, we reviewed a district court’s denial of a motion to sever an
unlawful firearms possession charge from bank robbery charges. United States v.
Brown, 33 F.3d 1002, 1005 (8th Cir. 1994); see also United States v. Brown, 70
F.3d 979, 980 (8th Cir. 1995) (appeal after remand, affirming denial of motion to
sever). We held that the defendant could not demonstrate prejudice from the district
court’s failure to sever because the stipulation admitted into evidence at trial did not
disclose the nature of the defendant’s prior felony convictions, even though it
revealed that he had been convicted of five felonies. Brown, 70 F.3d at 980. While
Brown thus stands for the principle that a defendant may not suffer prejudice if the
nature of the underlying felonies is not revealed, this holding has limited relevance
in Rogers’ case. In contrast to Brown, the stipulation in Rogers’ trial did disclose
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information about the nature of Rogers’ prior convictions. The district court
specifically instructed the jury that:
The United States of America, and the defendant,
Larry D. Rogers, stipulate that Larry D. Rogers has two
(2) felony convictions in the State of Oklahoma -- (1) a
grand larceny in 1981, and (2) a larceny of merchandise
from a retailer in 1982. Each crime is punishable by
imprisonment for more than one year under the laws of
Oklahoma.
The issue in Rogers’ case thus becomes whether the district court abused its
discretion and prejudiced Rogers’ right to a fair trial when it refused to sever or
bifurcate the counts, where the stipulation read to the jury disclosed the nature of the
underlying felony offenses. Cf. United States v. Williams, 923 F.2d 76, 78
(8th Cir. 1991) (per curiam) (no prejudice when government read a stipulation stating
that defendant had been convicted of three prior felonies, but contained no other
information about those felonies).
We analyzed a similar issue in United States v. Caldwell, 97 F.3d 1063 (8th
Cir. 1996), where defendant Caldwell appealed the denial of his motion to sever his
unlawful firearms possession count from his drug charges. Caldwell’s jury, like
Rogers’ jury, was told the nature of the underlying offenses, the date of the prior
convictions, and the length of the sentence. 97 F.3d at 1068. After the government
read portions of the court record that contained this information, the court gave a
cautionary instruction which limited the jury’s consideration of Caldwell’s two prior
felony convictions to the unlawful firearms possession count. Id. We held that this
method of proof was sufficient to limit any prejudice that Caldwell may have
suffered, despite the fact that it also disclosed the nature of the underlying
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convictions and the sentence received.4 Id.
In examining whether Rogers suffered prejudice, we first note that Rogers
agreed to the stipulation disclosing the nature of his underlying felonies.
Additionally, the district court allowed no testimony on the underlying felonies and
the court instructed the jury to consider the prior felony convictions only in
determining whether Rogers committed the firearm offense. Because the district
court thereby limited any potential prejudice that could have resulted from trying the
drug counts with the firearms count, Rogers has failed to show that the district court
abused its discretion and prejudiced his right to a fair trial when it denied his motion
for severance.
C. Enhancement for Possession of Firearm
Section 2D1.1(b)(1) of the Sentencing Guidelines Manual provides for a two-
level increase in a defendant’s base offense level “[i]f a dangerous weapon
(including a firearm) was possessed.” The government has “the burden at
sentencing to show by a preponderance of the evidence that a weapon was present
and that it is not clearly improbable that the weapon was connected with the
criminal activity.” United States v. Belitz, 141 F.3d 815, 817 (8th Cir. 1998), citing
United States v. Vaughn, 111 F.3d 610, 616 (8th Cir. 1997) (applying § 2D1.1). The
district court’s finding that a defendant possessed a firearm for purposes of
4
Even though we held that it was not unduly prejudicial to disclose the nature of
the underlying convictions, we acknowledged that the government “could have reduced
any possible prejudice even further by stipulating that [Caldwell] had been convicted of a
[felony] without introducing any information about the nature of the prior offense or the
sentence.” Caldwell, 97 F.3d at 1068 n. 2.
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§ 2D1.1(b)(1) may only be reversed if clearly erroneous. United States v. Payne, 81
F.3d 759, 762 (8th Cir. 1996).
Rogers’ base offense level was calculated at 34, and the district court
increased this offense level by two (2) points pursuant to U.S.S.G. § 2D1.1(b)(1).
The government argues that this two-level enhancement was supported by the
evidence, while Rogers argues that there was not a sufficient nexus between the
Smith and Wesson .44 magnum revolver and the drugs to warrant an enhancement.
Even though the loaded revolver was found in the same chair as a package of
methamphetamine, Rogers argues that there is no evidence that Rogers ever used
the gun in connection with drug activity.
Application Note 3 to § 2D1.1 explains the rationale behind the two-level
enhancement when it states the following:
The enhancement for weapon possession reflects the
increased danger of violence when drug traffickers
possess weapons. The adjustment should be applied if the
weapon was present, unless it is clearly improbable that
the weapon was connected with the offense. For
example, the enhancement would not be applied if the
defendant, arrested at his residence, has an unloaded
hunting rifle in the closet.
U.S.S.G. § 2D1.1, Application Note 3 (1995). According to the plain language in
Application Note 3, the two-level firearm enhancement should be applied “unless it
is clearly improbable that the weapon was connected with the offense.” Id. To
argue that it was clearly improbable that the gun was connected with the offense,
Rogers cites the testimony of the government’s confidential informant, Mark
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Gamble, who said that he had traded the gun to Rogers in exchange for drugs.
Rogers contends that this testimony shows that the gun was “used like cash” rather
than used as a weapon, so the two-level enhancement under § 2D1.1(b)(1) is
inapplicable. Rogers also highlights a comment made during his sentencing
hearing, where the sentencing judge stated that the fact that the gun itself was traded
for drugs seemed to implicate the gun in the drug transaction. Rogers argues that
the nexus established by trading the gun for drugs is not the kind of nexus
anticipated by the two-level enhancement in § 2D1.1(b)(1), and that the two-level
enhancement he received was thus clearly erroneous.
We disagree with Rogers and find that obtaining a gun in exchange for drugs
is sufficient to establish a nexus for a two-level enhancement pursuant to
§ 2D1.1(b)(1). An analogous issue was presented to the Supreme Court in Smith v.
United States, 508 U.S. 223 (1993), where the Court held that a criminal who trades
his firearm for drugs “uses” the firearm during and in relation to a drug trafficking
offense within the meaning of 18 U.S.C. § 924(c)(1).5 508 U.S. at 239. In reaching
this conclusion, the Court found that trading a gun for drugs falls within the plain
language of the statute, so long as the trade occurs during and in
relation to a drug trafficking offense. Id. at 240. The Court also noted the
following:
The fact that a gun is treated as an item of commerce does
5
Section 924(c)(1) requires the imposition of penalties if the defendant, “during
and in relation to any crime of violence or drug trafficking crime[], uses or carries a
firearm.” The Supreme Court explained in Smith that the statute requires the prosecution
to show that: (1) the defendant used or carried a firearm, and (2) the use or carrying was
during and in relation to a crime of violence or drug trafficking crime. 508 U.S. at 227.
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not render it inert or deprive it of destructive capacity.
Rather, as experience demonstrates, it can be converted
instantaneously from currency to cannon.
We therefore see no reason why Congress would have
intended courts and juries applying § 924(c)(1) to draw a
fine metaphysical distinction between a gun’s role in a
drug offense as a weapon and its role as an item of barter;
it creates a grave possibility of violence and death in
either capacity.
Id. (internal citation omitted). Three years after Smith, we applied Smith’s holding
to a case where the defendants had traded drugs for guns, rather than guns for drugs.
See United States v. Cannon, 88 F.3d 1495 (8th Cir. 1996). We found that Smith
applied with equal force in Cannon because the term “use” includes the action of
“bartering,” so when the Cannon defendants bartered their guns for drugs they
effectively “used” their guns pursuant to § 924(c). 88 F.3d at 1509.
Applying the logic from both Smith and Cannon to the issue before us here,
we hold that a drugs-for-gun trade is sufficient to warrant a two-level enhancement
under § 2D1.1(b)(1). The government proved beyond a preponderance of the
evidence that Rogers obtained the loaded .44 magnum revolver in exchange for
drugs. Even though Rogers may have neither fired nor flaunted the gun when he
later sold drugs, the fact remains that he traded drugs to get the gun and that he
could have easily converted the gun from “currency to cannon.” Such is the kind of
increased danger of violence that § 2D1.1(b)(1) seeks to address, and such is why
the district court did not clearly err in granting a two-level enhancement pursuant to
§ 2D1.1(b)(1).
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In addition to proving that Rogers traded drugs for the gun, the government
also proved by a preponderance of the evidence that the revolver was found in the
same chair as some of the methamphetamine. Viewed either alone or in the context
of the drugs-for-gun trade, this evidence proved a nexus between the weapon, the
drug trafficking activity, and the defendant for purposes of a
§ 2D1.1(b)(1) enhancement. See Payne, 81 F.3d at 763, citing United States v.
Bost, 968 F.2d 729, 732 (8th Cir. 1992). We therefore find that the imposition of the
§ 2D1.1(b)(1) enhancement was not clearly erroneous.
D. Sufficiency of the Evidence
When reviewing the sufficiency of the evidence for a criminal conviction, “we
look at the evidence in the light most favorable to the verdict and accept as
established all reasonable inferences supporting the verdict. We then uphold the
conviction only if it is supported by substantial evidence.” United States v.
Harrison, 133 F.3d 1084, 1085 (8th Cir. 1998), citing United States v. Black Cloud,
101 F.3d 1258, 1263 (8th Cir. 1996). For evidence to be substantial, it “need not
exclude every reasonable hypothesis of innocence, but simply be sufficient to
convince the jury beyond a reasonable doubt that the defendant is guilty.”
Harrison, 133 F.3d at 1085, citing United States v. McGuire, 45 F.3d 1177, 1186
(8th Cir. 1995). We will uphold the verdict if there is “an interpretation of the
evidence that would allow a reasonable jury to conclude guilt beyond a reasonable
doubt.” United States v. Dolan, 120 F.3d 856, 868 (8th Cir. 1997), citing United
States v. Uder, 98 F.3d 1039, 1045 (8th Cir. 1996).
Rogers contends that the evidence is insufficient to support his conviction
15
because the drugs were found in the motor home that Glen Woolsey owned,
because other people besides Rogers had access to this motor home, and because
the confidential informant who testified against Rogers had acted in hopes of
securing leniency for his brother.6
After reviewing the record, we find sufficient evidence from which the jury
could have chosen to believe Gamble’s rendition of Rogers’ participation, despite
Gamble’s alleged biased interest in helping his brother.7 See Uder, 98 F.3d at 1045
(stating that decisions concerning witness credibility are to be resolved in favor of
the jury’s verdict). Similarly, even though Rogers did not own Motor Home #1 and
other people had access to it, the circumstantial evidence admitted at trial was more
than sufficient to allow a reasonable jury to find guilt beyond a reasonable doubt.
6
Larry Rogers’ daughter and ex-wife testified that on the evening of April 29,
1997, Gamble was just leaving Rogers’ property when they arrived. Rogers’
daughter asked her father if she could have $20 for a school trip, but he said that he
“didn’t have it on him.” Rogers’ ex-wife testified that in her experience, Rogers
would always give her or her daughter money when they needed it, so long as he
had it. The defense introduced this testimony as evidence that Rogers did not have
$20 in cash on April 29, 1997, just moments after Gamble had supposedly given
him $25 in cash. The defense asserted that this testimony proved that Gamble had
not purchased drugs from Rogers and that Gamble had fabricated the alleged drug
buy.
7
Gamble admitted that he had first approached Officer Grizzle because
Gamble’s brother, Mike, was working for Rogers in exchange for Rogers giving him
methamphetamine, and that Gamble was concerned about his brother.
Gamble also admitted that on April 29, 1997–the date when Gamble told
investigators he had bought marijuana for $25 from Rogers–Gamble’s brother was
already incarcerated at the Sebastian County jail for drug charges.
16
Rogers’ challenge to the sufficiency of the evidence underlying his convictions must
therefore fail.
III. Conclusion
For the reasons stated, we affirm the judgment of the district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT
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