United States v. Drexel L. Dukes, Jr. ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-2361
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United States of America, *
*
Appellee, *
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v. * Appeal from the United States
* District Court for the Southern
Drexel Lee Dukes, Jr., * District of Iowa.
*
Appellant. *
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Submitted: October 14, 2005
Filed: January 5, 2006
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Before ARNOLD, MURPHY, and GRUENDER, Circuit Judges.
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GRUENDER, Circuit Judge.
A jury convicted Drexel Lee Dukes, Jr. of two counts of manufacturing or
aiding and abetting the manufacture of methamphetamine in violation of 21 U.S.C. §§
841(a)(1), 841(b)(1)(C), 846 and 2, and two counts of possessing an unregistered
firearm silencer in violation of 26 U.S.C. § 5861(d). The district court1 denied
Dukes’s pretrial motion to suppress the evidence obtained from two searches and his
1
The Honorable Ronald E. Longstaff, Chief Judge, United States District Court
for the Southern District of Iowa.
post-verdict motion for a new trial and sentenced Dukes to 94 months’ imprisonment.
On appeal, Dukes renews his challenges to the searches and to the sufficiency of the
evidence. For the reasons discussed below, we affirm the judgment of the district
court.
I. BACKGROUND
Dukes resided with his girlfriend, Pamela Hoselton, in rural Red Oak, Iowa,
near the home of Shane and Julie Patent. At approximately 3:00 a.m. on September
11, 2003, a drive-by shooting occurred at the Patents’ home. Upon hearing the
gunshots, the Patents ran to their window and observed a white Chevy Cavalier with
a stripe on the side speeding away. The Patents recognized it as Hoselton’s car. The
Patents immediately informed the police. After police officers discovered .22-caliber
bullets lodged in the side of the Patents’ home, they drove past Hoselton’s residence,
where they observed a white Chevy Cavalier with a stripe on the side parked outside.
On this basis, the police obtained a warrant to search Hoselton’s car and residence for
firearms and ammunition.
While searching Hoselton’s residence for firearms and ammunition, police
observed evidence of methamphetamine use and manufacture. They immediately
obtained a second warrant to broaden the search to include evidence of
methamphetamine manufacture and trafficking and to cover a mobile home on the
property. The kitchen of the residence contained items such as sixteen boxes of
pseudoephedrine, a box containing a by-product of methamphetamine manufacture
commonly referred to as “sludge,” two scanners and a .22-caliber shell casing.
Elsewhere in the residence, police discovered firearms and ammunition, a small vial
of methamphetamine and items associated with methamphetamine use. In a cabinet
in the dining room, police discovered two objects that were suspected to be homemade
firearm silencers, along with a scale. Outside the residence and in the mobile home,
police found other items associated with methamphetamine manufacture, such as
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stripped lithium batteries, a surveillance camera and propane and carbon dioxide tanks
of a type commonly used to store anhydrous ammonia for methamphetamine
manufacture. Finally, police found a fanny pack near Dukes’s truck that Dukes
admitted belonged to him. The fanny pack contained methamphetamine and
handwritten instructions for making methamphetamine.
An agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives
(“ATF”) tested the two suspected firearm silencers. The objects were industrial
mufflers for pneumatic air valves that had been modified with holes bored lengthwise
through their centers, wide enough for a bullet to pass. In addition, a set of adjustable
screws had been added to the end of one of the mufflers that would enable it to be
firmly attached as an extension to the end of firearm barrels of various sizes. The
ATF agent test-fired a firearm through each suspected silencer. The muffler with the
adjustable screws demonstrated the noise reduction characteristics of a high-quality
firearm silencer. The other muffler, although damaged in its initial test-firing, still
yielded respectable noise reduction characteristics.
In July 2004, Hoselton called the police and asked them to return the property
seized during the September 2003 search. Hoselton told the police that she and Dukes
had their “asses covered” with respect to the suspected firearm silencers because they
could prove similar mufflers were present at Dukes’s place of employment. Hoselton
also stated that she and Dukes had more of the mufflers at their house. Based on
Hoselton’s statement, the police obtained another warrant to search the house for
firearm silencers. Upon entering the property, police observed fresh evidence of
methamphetamine manufacture and again obtained a second warrant to broaden the
search to include evidence of methamphetamine manufacture. Police discovered
additional fresh evidence of methamphetamine manufacture from the residence,
grounds and mobile home, including a new container of methamphetamine “sludge”
in a kitchen oven.
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Dukes was charged with two counts of manufacturing or aiding and abetting the
manufacture of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(C), 846 and 2, one count based on the evidence from the September 2003
search and the other based on the evidence from the July 2004 search. Dukes also was
charged with two counts of possessing an unregistered firearm silencer in violation
of 26 U.S.C. § 5861(d). The district court denied Dukes’s motion to suppress the
evidence obtained from the two searches. After a three-day trial, a jury convicted
Dukes on all counts. The district court sentenced Dukes to a prison term of 94
months. On appeal, Dukes argues that the original search warrant was not supported
by probable cause and that there was insufficient evidence to support his convictions.
II. DISCUSSION
A. Probable Cause
The probable cause standard is met when there is a “fair probability,” based
upon the totality of the circumstances, that the items listed may be found at the place
to be searched. United States v. Coleman, 349 F.3d 1077, 1083 (8th Cir. 2003). The
denial of a motion to suppress is reviewed de novo, but the underlying factual
determinations are reviewed for clear error, giving due weight to the inferences of the
district court and law-enforcement officials. Id.
Dukes contends that the Patents’ identification of a white Chevy Cavalier with
a stripe on the side was not specific enough to establish probable cause to believe
Hoselton’s white Chevy Cavalier with a stripe on the side was the vehicle involved
in the drive-by shooting. This argument fails. Immediately after the incident, the
Patents identified the car as belonging to Hoselton, and the police confirmed the
presence of a car matching the Patents’ description at Hoselton’s nearby residence.
It is well-settled that the personal and recent knowledge of named eyewitnesses is
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sufficient to establish probable cause. See, e.g., Cundiff v. United States, 501 F.2d
188, 190 (8th Cir. 1974). The Patents’ description of the vehicle as matching the one
belonging to Hoselton, confirmed by the presence of the matching vehicle at
Hoselton’s residence, was sufficient to establish a fair probability that Hoselton’s
vehicle was the one involved in the incident. Therefore, the district court did not err
in denying the motion to suppress.
B. Insufficient Evidence
“We review de novo the sufficiency of the evidence, viewing the evidence in
the light most favorable to the verdict and upholding it if, based on all the evidence
and all reasonable inferences in favor of the verdict, any reasonable juror could find
the defendant guilty beyond a reasonable doubt.” United States v. Hill, 410 F.3d 468,
471 (8th Cir. 2005). Dukes challenges the sufficiency of the evidence to support his
convictions for manufacture of methamphetamine and for possession of unregistered
firearm silencers. We examine the evidence to support each in turn.
1. Manufacture of Methamphetamine
The Government presented extensive evidence from the September 2003 search
to prove methamphetamine manufacture, including the discovery of sixteen boxes of
pseudoephedrine, a coffee grinder coated with white powdery residue and a box
containing methamphetamine “sludge” in the kitchen of Hoselton’s residence, plus
stripped lithium batteries, propane and carbon dioxide tanks of a type commonly used
to store anhydrous ammonia, a surveillance camera, paint thinner and Coleman fuel
(a petroleum-based fuel for camp stoves, lanterns and heaters that can be used as a
solvent in the methamphetamine manufacture process) on the grounds and in the
mobile home. The evidence also included the recipe for methamphetamine
manufacture discovered in the fanny pack that Dukes admitted belonged to him.
Evidence for the second count from the July 2004 search included a receipt for the
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purchase of more packages of pseudoephedrine, coffee filters with white residue, a
fresh container of methamphetamine “sludge” in the kitchen, a propane tank
displaying a bluish corrosion associated with the storage of anhydrous ammonia and
burned remnants of pseudoephedrine packaging and lithium battery casings.
Dukes does not dispute that the evidence was indicative of methamphetamine
manufacture in the area. Instead, he argues that the Government produced no
evidence that a complete, working methamphetamine lab ever existed on the property.
Dukes presents the alternative explanation that the property was strewn with common
household junk, some of which coincidentally could be used in the manufacture of
methamphetamine, and that unidentified people used or disposed of additional
methamphetamine laboratory items on the property without his knowledge. In support
of his alternative explanation, Dukes cites the absence of any testimony connecting
him to methamphetamine manufacture.
It is true that our cases affirming the sufficiency of the evidence for
methamphetamine manufacture often rely partly on the testimony of others who
witnessed the defendant’s methamphetamine activity. See, e.g., United States v.
Ziesman, 409 F.3d 941, 948 (8th Cir. 2005) (relying on the testimony of witnesses
who saw the defendant “making and using methamphetamine, delivered
methamphetamine laboratory supplies to him, and sold methamphetamine for him,”
as well as physical evidence of a methamphetamine laboratory discovered at the
defendant’s residence); United States v. Kessler, 321 F.3d 699, 702 (8th Cir. 2003)
(relying on the testimony of a co-conspirator who manufactured methamphetamine
with the defendant, along with physical evidence such as “drug paraphernalia, residual
methamphetamine, firearms and ammunition, a police scanner, and the remains of
methamphetamine labs”). However, we have never held that physical evidence
without corroborating testimony would, as a rule, be insufficient to support a
conviction. In this case, the physical evidence of methamphetamine manufacture on
the property was extensive. In particular, Dukes’s alternative explanation does not
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explain items such as the containers of methamphetamine “sludge” discovered in the
kitchen in September 2003 and again in the kitchen in July 2004, nor does it explain
the methamphetamine recipe discovered in Dukes’s fanny pack. Dukes and Hoselton
admitted they were methamphetamine users, and the Government introduced evidence
that it is common for methamphetamine users to begin manufacturing
methamphetamine for their own use to avoid the high costs charged by
methamphetamine dealers. In a case where methamphetamine manufacturers in a
remote area only were supporting their own home use, there would be no reason to
presume involvement by additional co-conspirators or customers who then would be
available to testify. We cannot say that a reasonable jury could not find Dukes guilty
beyond a reasonable doubt simply because of the absence of incriminating testimony
from witnesses or co-conspirators.
In short, the jury considered and rejected Dukes’s theory that the items
associated with methamphetamine manufacture were merely household items or were
placed on the property by others. This conclusion was reasonable in light of all the
evidence and the reasonable inferences to be drawn from it. The evidence was
sufficient to support Dukes’s convictions for manufacturing or aiding and abetting the
manufacture of methamphetamine.
2. Unregistered Firearm Silencers
The elements of possession of an unregistered firearm silencer under 26 U.S.C.
§ 5861(d) are that (1) the defendant knew he possessed the object, (2) the defendant
knew the object was a silencer, (3) the silencer was capable of operating as designed,
and (4) the silencer was not registered to the defendant in the National Firearms
Registration and Transfer Record. Eighth Circuit Model Jury Instruction § 6.26.5861.
Dukes challenges the sufficiency of the evidence with respect to the second element,
the defendant’s knowledge.
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The Government’s burden of proof on the knowledge element of § 5861(d)
depends upon whether the firearm can be characterized as “quasi-suspect.” United
States v. Walker, 428 F.3d 1165, 1171 (8th Cir. 2005) (citing Staples v. United States,
511 U.S. 600, 611-12 (1994)). An object that appears to be a traditionally lawful
firearm, such as a rifle, is not quasi-suspect. Id. On the other hand, an object that fits
the broad statutory definition of “firearm” in 26 U.S.C. § 5845 and does not appear
to be traditionally lawful, such as a hand grenade, sawed-off shotgun or Molotov
cocktail, is quasi-suspect. Id. at 1171-72. Whether an object is quasi-suspect depends
upon the likelihood that one would know from the obvious characteristics of the
object that one “was engaging in illegal activity by possessing the object.” Id. at
1172.
If the characteristics of the object render it quasi-suspect, the Government need
only prove that the defendant “knowingly possessed the item.” Id. at 1171. For a
non-quasi-suspect object, the Government has the additional burden of proving that
the defendant knew of the specific characteristics of the object that made it subject to
§ 5861. United States v. Barr, 32 F.3d 1320, 1323 (8th Cir. 1994). In other words,
for a non-quasi-suspect object, the Government must prove beyond a reasonable doubt
that the defendant knew the object he possessed had the characteristics that brought
it within the statutory definition of “firearm” in 26 U.S.C. § 5845. Staples, 511 U.S.
at 602.
On appeal, the Government takes the position that the suspected homemade
firearm silencers are quasi-suspect objects. We need not decide that question,
however, because in this case the jury made the necessary finding for possession of
a non-quasi-suspect firearm under § 5861(d). The jury instructions required the jury
to find that Dukes “knew [the object] was a firearm silencer,” Jury Instruction No. 11,
and correctly defined “firearm silencer” as “any device for silencing, muffling, or
diminishing the report of a portable firearm,” Jury Instruction No. 13. See 26 U.S.C.
§ 5845(a)(7) (cross-referencing 18 U.S.C. § 921(a) for the applicable definition of
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“firearm silencer”). Thus, in order to reach its guilty verdict for possession of
unregistered firearms, the jury necessarily had to find that Dukes knew each muffler
was a device for silencing, muffling, or diminishing the report of a portable
firearm—the knowledge element required by Staples for non-quasi-suspect objects.
Dukes argues that there was insufficient evidence to support the jury’s finding
that he knew the modified mufflers to be firearm silencers. “[K]nowledge can be
inferred from circumstantial evidence, including any external indications signaling the
nature of the [relevant item].” United States v. Hall, 171 F.3d 1133, 1152 (8th Cir.
1999) (quoting Staples, 511 U.S. at 615-16 n.11) (second alteration in Hall). In this
case, Dukes admitted he was aware that the objects were designed to function as
noise-muffling devices, that each had been modified with a hole bored lengthwise
through its center and that one was fitted with the previously described adjustable
screws. The evidence showed that the modifications rendered the devices useless for
their intended function on pneumatic air valves. The evidence also showed that Dukes
possessed these modified noise-muffling devices in a residence containing multiple
firearms where methamphetamine was used and manufactured. Given the
circumstances in which Dukes possessed the objects, a reasonable jury could conclude
beyond a reasonable doubt that Dukes knew each object was modified to be a device
for silencing, muffling, or diminishing the report of a portable firearm. See Hall, 171
F.3d at 1152 (upholding a jury’s finding of specific intent to possess a firearm silencer
where the object was discovered on the defendant’s premises in a bag with other
noise-muffling materials and a firearm, and the premises were used for
methamphetamine distribution). Therefore, the jury verdict of guilty for possession
of unregistered firearm silencers was supported by sufficient evidence.
III. CONCLUSION
We conclude that the original search warrant was supported by probable cause
and that there was sufficient evidence to support Dukes’s convictions for
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manufacturing or aiding and abetting the manufacture of methamphetamine and
possessing unregistered firearm silencers. Therefore, we affirm the entry of judgment
on the jury verdict by the district court.
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