United States v. Hass

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

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No. 97-40778
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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

TOMMIE HASS; RICHARD HASS, also known as Buddy,

Defendants-Appellants.

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Appeals from the United States District Court
For the Eastern District of Texas
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August 5, 1998

Before KING and DAVIS, Circuit Judges, and HEARTFIELD,* District

Judge.

W. EUGENE DAVIS, Circuit Judge:

The Appellants were convicted of conspiring to manufacture and

distribute methamphetamine in violation of 21 U.S.C. § 846. For

reasons set forth below, we affirm in part, vacate in part, and

remand.

I.

In February of 1997, Appellants Tommie Hass (“Tommie”) and

Richard “Buddy” Hass (“Buddy”) were convicted of conspiracy to

manufacture and distribute methamphetamine in violation of 21

U.S.C. § 846. We summarize below the evidence the Government

produced in support of the charges alleged in the Indictment.

*
District Judge of the Eastern District of Texas, sitting by
designation.
 A.

In late 1995, a task force consisting of Drug Enforcement

Administration Special Agents, Texas Department of Public Safety

Officers, and other law enforcement officials began investigating

a drug ring specializing in the sale of methamphetamine. This drug

ring, known as the Anderson Organization, consisted of a number of

individuals, including Tommie and Buddy Hass, Terry Anderson,

Thomas Anderson, Cheryl Cheek, and Phillip Morgan. The task force

accumulated evidence through informants, monitored telephone

conversations, controlled purchases of illegal narcotics, physical

surveillance, and physical evidence obtained through search

warrants. Additionally, at trial, several Co-Defendants cooperated

with the Government and offered testimony implicating the remaining

Defendants. The evidence offered by the Government indicated that

Buddy and Tommie Hass were involved in a large-scale

methamphetamine distribution ring, mainly as suppliers to Terry

Anderson.

Teresa Hass (“Teresa”), Tommie’s estranged wife, testified at

trial that she began selling methamphetamine with Tommie and Buddy

in 1995. She purchased between three and six ounces of

methamphetamine each week at $1,200 per ounce and picked up the

drugs from Buddy Hass’s apartment. Tommie Hass was present at

Buddy’s apartment on several of these occasions. Through her

association with Buddy, Teresa met Kent Erdman (“Erdman”), a cousin

of Terry Anderson (“Anderson”). According to Teresa, Erdman sold

large quantities of methamphetamine for Buddy and helped the Hasses

manufacture methamphetamine.

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 Teresa related an occasion in the fall of 1995 where Buddy and

Tommie attempted to sell approximately one-half pound of

methamphetamine to Anderson. The night of the sale, Teresa, Buddy,

and Anderson met in the parking lot of a Denny’s restaurant, where

Buddy delivered methamphetamine samples to Anderson. Later that

night, Anderson and others met Tommie and Teresa at a prearranged

location to pay for the drugs.

Phillip Morgan (“Morgan”), a co-conspirator in the drug ring,

testified that he became involved in the sale of methamphetamine

with the Hasses and Anderson. Anderson and Erdman set up a

methamphetamine lab at Morgan’s home and conducted at least five

“meth cooks” at the home. Morgan stated that both Buddy and Tommie

supplied Anderson with methamphetamine, which Anderson in turn

sold. Additionally, Erdman advised Morgan that Buddy and Tommie

were teaching him how to “cook” methamphetamine. The “meth lab”

was later moved from Morgan’s home to the home of Cheryl Cheek,

where it was discovered by law enforcement officials.

Bonnie McLeroy (“McLeroy”), Buddy’s girlfriend, provided some

of the most damaging evidence against the Hasses. McLeroy first

became associated with Buddy by selling methamphetamine for Buddy

on a consignment basis. McLeroy began living with Buddy Hass in

May or June of 1995 and continued to sell drugs for Buddy. McLeroy

soon learned that Buddy and Tommie Hass were joint venturers in the

manufacture and sale of methamphetamine. On several occasions,

Buddy pressured McLeroy to keep current on her payments for the

drugs she sold because Tommie demanded his share of the profits.

On at least two occasions, Tommie came to McLeroy’s home looking

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for payment for drugs that McLeroy had sold. McLeroy also observed

a methamphetamine sale between Tommie Hass and Terry Anderson at

the Fountain of Jupiter apartment occupied by Danny Fowler

(“Fowler”) and Tommie. McLeroy was arrested for the distribution

of methamphetamine in June of 1995. She soon learned that she had

been “set up” by a confidential informant. In response, Buddy and

Tommie took steps to arrange for the murder of the informant. This

plan was later abandoned at McLeroy’s request.

In addition to the above, various other witnesses, most of

whom were personally involved in the Anderson Organization,

testified to the Hass brothers’ involvement in the manufacture,

distribution, and sale of methamphetamine. While working in an

undercover capacity, Vicky Roberts (“Roberts”) made numerous taped

conversations with both Hass brothers and with Terry Anderson, and

was present at several methamphetamine purchases. She testified

that on several occasions, she accompanied Anderson to Buddy’s

apartment to purchase drugs. On one particular occasion, Tommie

Hass was present and gave Anderson an accounting of the amount of

money Anderson owed to the Hass brothers for past purchases of

drugs. Tommie also visited Roberts’s apartment on at least two

occasions in search of Anderson to collect money that Anderson owed

for previous drug purchases.

The Hass brothers’ career in the methamphetamine business

began to unravel in late 1995. In October of 1995, the Dallas

Police Department seized an operational “meth lab” from Erdman’s

apartment. Detectives discovered Buddy’s fingerprints on glassware

found at the lab. In November of 1995, law enforcement officials

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recorded conversations between Roberts and Tommie regarding

Roberts’s purchase of methamphetamine. Roberts also made a

controlled purchase of approximately one ounce of methamphetamine

from Tommie.

On October 12, 1996, Tommie Hass was stopped for failing to

dim his truck’s headlights. Tommie did not immediately follow the

officer’s instructions to stop and continued along the shoulder of

the road for approximately one-half mile. The officer observed a

clear plastic bag being thrown from the driver’s side window. A

subsequent search of the vehicle revealed approximately three grams

of methamphetamine, chemical agents to “cut” methamphetamine, and

$17,500 in cash.

Soon after Tommie’s arrest, law enforcement officials

conducted surveillance at the home of Buddy’s father in an attempt

to locate and arrest Buddy. Officers observed a pickup truck

driven by Danny Fowler and apparently carrying a passenger arrive

at the residence. Soon thereafter, the truck departed and two

officers began to follow it. A license plate check revealed that

the truck was registered to Fowler, and the officers also learned

that Fowler had outstanding arrest warrants. The officers stopped

the truck and arrested Fowler. The truck was impounded and a

subsequent search revealed a dismantled “meth lab,” which included

various chemicals, plastic tubing, Pyrex measuring bowls, and

weighing scales. Soon thereafter, Buddy Hass was arrested inside

the home of his father.

B.

Before trial, the Government filed a Notice of Sentence

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Enhancement for both Hass brothers, pursuant to 21 U.S.C.

§ 851(a)(1). The Government sought to enhance Tommie’s sentence to

one of life imprisonment, and to enhance Buddy’s sentence to not

less than twenty years nor more than life imprisonment. On

February 27, 1997, following a seven-day trial, the jury returned

its guilty verdicts against both Tommie and Buddy.

In July of 1997, the Hasses were sentenced. Tommie’s

Presentence Report noted the following prior felony drug

convictions: (1) January 16, 1987 for felony possession of a

controlled substance in Rockwall County, Texas; (2) August 26, 1996

for felony possession of a controlled substance in Wood County,

Texas, on August 12, 1995; and (3) August 26, 1996 for felony

possession of a controlled substance in Wood County, Texas, on

October 20, 1995. Therefore, pursuant to the sentence enhancement

in 21 U.S.C. § 841(b)(1)(A), the district court sentenced Tommie to

life imprisonment. Buddy had one prior felony drug conviction, and

the district court sentenced him to 262 months imprisonment

pursuant to the minimum enhancement in 21 U.S.C. § 841(b)(1)(A).

Both Tommie and Buddy appealed, challenging their convictions and

sentences on multiple grounds which we consider below.

II.A.

We first consider Tommie’s argument that the Government’s

evidence was insufficient to support his conviction for conspiracy

to manufacture and distribute methamphetamine in violation of 21

U.S.C. § 846, and that the district court erred in denying his

Motion for Acquittal. Specifically, Tommie argues that the

Government failed to prove that he was a co-conspirator in the

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Anderson Organization. We review the sufficiency argument under

the familiar standard of whether a reasonable juror could conclude

that the evidence, viewed in the light most favorable to the

verdict, establishes the defendant’s guilt beyond a reasonable

doubt. United States v. Greer, 137 F.3d 247, 249 (5th Cir. 1998).

In a drug conspiracy case, the government must prove that

(1) there was an agreement between two or more persons to possess

controlled substances with the intent to distribute; (2) the

defendant knew of the conspiracy and intended to join it; and

(3) the defendant voluntarily participated in the conspiracy.

United States v. Mitchell, 31 F.3d 271, 274 (5th Cir. 1994).

We are satisfied that a reasonable juror could have concluded

that Tommie knew of and voluntarily participated in a conspiracy to

manufacture and sell methamphetamine. This conclusion follows from

our earlier discussion of the record evidence, which includes the

following: (1) testimony of several witnesses that Buddy and

Tommie were “partners” in their drug sales; (2) the testimony of

Vicky Roberts regarding Tommie’s demands that Anderson pay for

methamphetamine that Anderson had purchased from the Hass brothers;

(3) recorded conversations between Vicky Roberts and Tommie and

Roberts’s undercover purchase of methamphetamine from Tommie; (4)

the testimony of Teresa Hass regarding her purchase of

methamphetamine from the Hass brothers, and the sale of

approximately one-half pound of methamphetamine to Anderson; (5)

the testimony of Phillip Morgan that Buddy and Tommie were helping

to supervise the methamphetamine laboratory “cooks” at his home;

and (6) the testimony of Bonnie McLeroy regarding the sale of

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methamphetamine from Tommie to Anderson.

Tommie’s argument that the Government failed to prove a single

conspiracy as alleged in the Indictment is unpersuasive. While

Tommie is correct in noting that some of the participants in the

conspiracy may have acted independently at times, this does not

serve a fatal blow to the overarching conspiracy. At the least,

the evidence offered by the Government establishes that through a

series of transactions, Tommie conspired to purchase, manufacture,

and sell methamphetamine with Buddy and others, which they in turn

sold in quantities sufficient for distribution to Anderson and

others, who in turn sold to various persons. The evidence was

therefore sufficient to allow a reasonable jury to find that Tommie

was a member of a single conspiracy as charged in the Indictment.

B.

Next, both Buddy and Tommie argue that the district court

erred in admitting evidence of Buddy’s fingerprints found on

glassware at an operational “meth lab” discovered in Kent Erdman’s

apartment and evidence of the dismantled “meth lab” found in Danny

Fowler’s truck after Fowler left the home of Buddy’s father. We

review rulings on the admissibility of evidence for an abuse of

discretion. United States v. Chavez, 119 F.3d 342, 346 (5th Cir.

1997).

1.

Detective John Degan testified at trial that on October 1,

1995, law enforcement officials seized an operational

methamphetamine laboratory from the apartment of Kent Erdman.

Buddy’s fingerprints were found on glass components to the

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laboratory. Buddy argues that the district court erred in

admitting the fingerprint evidence because it is extrinsic evidence

under Fed. R. Evid. 404(b), and further, that its probative value

is substantially outweighed by unfair prejudice under Fed. R. Evid.

403. We disagree.

First, as the Government correctly points out, the evidence is

not extrinsic under Rule 404(b) because it involves conduct within

the conspiracy. See United States v. Garcia Abrego, 141 F.3d 142,

175 (5th Cir. 1998). Such evidence is intrinsic--i.e., direct

evidence that Buddy was involved in the manufacture of

methamphetamine. Id. Second, we do not agree with Buddy’s

contentions that the Government failed to show Buddy’s connection

to the seized laboratory. The Government provided a more than

adequate link between Buddy and the methamphetamine lab at Erdman’s

apartment. Both Teresa Hass and Phillip Morgan testified that

Buddy and Erdman were jointly manufacturing methamphetamine and

were assisting each other in this endeavor. The fingerprint

evidence therefore corroborates the testimony of both Teresa Hass

and Phillip Morgan. The district court did not abuse its

discretion in admitting this evidence.

2.

Both Buddy and Tommie object to the admission of evidence of

the dismantled methamphetamine laboratory seized by the police from

Danny Fowler’s truck on October 15, 1996, soon after Fowler left

the home of Buddy’s father. Shortly after Fowler was stopped in

his truck, law enforcement officials apprehended Buddy at his

father’s home. Appellants argue that the Government established no

9
connection between the Hasses and the dismantled lab, and that the

evidence was prejudicial extrinsic evidence under Rule 404(b).

Again, we disagree.

Evidence of acts committed pursuant to a conspiracy that is

offered to prove the defendant’s membership or participation in the

conspiracy is not extrinsic evidence. United States v. Krout, 66

F.3d 1420, 1431 (5th Cir. 1995). The dismantled methamphetamine

lab therefore is not extrinsic evidence; rather, it is relevant

evidence of the conspiracy, notwithstanding the fact that it was

seized after the date the Government alleged that the conspiracy

had ended. This evidence corroborates the testimony of a number of

witnesses that the Hass brothers were involved in the manufacture

of methamphetamine and operated several methamphetamine labs.

Additionally, witness testimony linked Fowler, the driver of the

truck, to the Hasses and the manufacture and sale of

methamphetamine. Bonnie McLeroy and Vicky Roberts testified that

numerous methamphetamine sales were conducted at the apartment

shared by Tommie and Fowler, and that Fowler was regarded as the

Hass brothers’ “go-fer.” This evidence establishes a link between

the dismantled lab found in the back of Fowler’s truck and the Hass

brothers, and the district court did not abuse its discretion in

admitting this evidence.1

C.

1
The lab’s connection to Tommie is somewhat more tenuous.
However, the district court instructed the jury that evidence
pertaining to each defendant should be considered separately and
individually. Any undue prejudice to Tommie that may have resulted
from the admission of the dismantled lab was cured by the district
court’s limiting instruction. See United States v. Fields, 72 F.3d
1200, 1215 (5th Cir. 1996).

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 Tommie Hass protests the enhancement of his sentence to life

imprisonment pursuant to 21 U.S.C. § 841(b)(1)(A). He argues, as

he did in the district court, that the Government failed to prove

that he had two prior felony drug convictions, and therefore, the

district court erred in sentencing him to life imprisonment. As an

initial matter, the Government concedes that Tommie’s January 16,

1987 conviction for felony possession of a controlled substance in

Rockwall County, Texas was reversed, and therefore cannot be used

for enhancement purposes. Nonetheless, the Government maintains

that Tommie’s sentence was properly enhanced using the two August

26, 1996 convictions for felony possession of a controlled

substance in Wood County, Texas on August 12, 1995, and felony

possession of a controlled substance in Wood County, Texas on

October 20, 1995.

Section 841(b)(1)(A) of Title 21 of the United States Code

provides that any person convicted of a drug felony which carries

a penalty of ten years to life imprisonment shall be sentenced to

a mandatory term of life imprisonment if the commission of the drug

felony occurs “after two or more prior convictions for a felony

drug offense have become final.” See, e.g., United States v. Puig-

Infante, 19 F.3d 929, 947 (5th Cir. 1994) (“For a sentencing court

to enhance a defendant’s sentence under section 841, the defendant

must commit such a violation . . . after a prior conviction for a

felony drug offense has become final.”) (emphasis in original and

quotations omitted); United States v. Howard, 115 F.3d 1151, 1158

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(4th Cir. 1997).2 The purpose of the mandatory enhancements in

§ 841(b) is to deter future criminal conduct and target recidivism.

See Puig-Infante, 19 F.3d at 948; United States v. Garcia, 32 F.3d

1017, 1019-20 (7th Cir. 1994).

The question we must address is whether the instant drug

offense was committed after the two August 26, 1996 convictions

upon which the Government relied for enhancement became final.

In United States v. Morales, 854 F.2d 65 (5th Cir. 1988), this

Court considered an objection to a defendant’s sentence that was

enhanced pursuant to 21 U.S.C. § 841(b)(1)(B), an analogous drug

enhancement statute containing the same language as

§ 841(b)(1)(A).3 The defendant objected to the enhancement,

arguing that under Texas law his conviction was not final. After

noting that “the meaning to be assigned to the term ‘ha[s] become

final’ in 21 U.S.C. § 841(b)(1)(B) is a question of federal, not

state law,” the court held that

the final-conviction language of § 841(b)(1)(B) applies
to a conviction which is no longer subject to examination
on direct appeal, including an application for certiorari
to the United States Supreme Court, either because of
disposition on appeal and conclusion of the appellate
process, or because of the passage, without action, of
the time for seeking appellate review. [The defendant]
did not appeal his Texas felony conviction and the time
for doing so has passed; thus, for federal sentencing

2
Tommie’s conspiracy conviction carries a statutory penalty
range of not less than ten years nor more than life imprisonment.
See 21 U.S.C. §§ 846, 841(b)(1)(A).
3
21 U.S.C. § 841(b)(1)(B) applies to any person convicted of
a drug felony which carries a penalty of not less than five years
and not more than 40 years, and provides for the following
enhancement: “If any person commits such a violation after a prior
conviction for a felony drug offense has become final, such person
shall be sentenced to a term of imprisonment which may not be less
than 10 years and not more than life imprisonment . . . .” Id.

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 enhancement purposes under § 841(b)(1)(B), that
conviction has become final.

Id. at 65, 68-69 (emphasis added and internal citations omitted).

The court’s language in Morales is clear: for § 841(b)(1)

enhancement purposes, a conviction does not become final until the

time for seeking direct appellate review has elapsed. The case

also makes it clear that enhancement is authorized only if the

commission of the § 841 offense occurs after the prior felony drug

offense(s) has become final.4

At issue in this case is whether Tommie’s two prior drug

felony offenses, arising from incidents in August and October of

1995 in Wood County, Texas, became final before the commission of

the instant drug conspiracy offense. The record reflects that

Tommie was sentenced for both prior offenses on August 26, 1996.

Under Rule 26.2 of the Texas Rules of Appellate Procedure, a

criminal defendant has thirty days from the day sentence is imposed

to file a notice of appeal. Tex. R. App. P. 26.2(a)(1). Thus, the

time for direct appellate review of these convictions did not

expire until September 26, 1996, and the convictions did not become

“final” for enhancement purposes under Morales until that time.

See also Puig-Infante, 19 F.3d at 947 (“conviction becomes final

when it is no longer subject to examination on direct appeal”)

4
See also United States v. Brazel, 102 F.3d 1120, 1163 (11th
Cir. 1997) (“While the record does not show whether [the defendant]
appealed, it is clear he would not have exhausted his appeal rights
under state rules until after the conspiracy had ended. Thus, the
provision for enhanced sentencing based on prior, final convictions
was inapplicable.”); United States v. Hughes, 924 F.2d 1354, 1358-
62 (6th Cir. 1991) (affirming defendant’s sentence enhancement
because defendant continued conspiracy for approximately three
months after prior felony drug offense became final).

13
(citing Morales); United States v. Brazel, 102 F.3d 1120, 1163

(11th Cir. 1997). According to the Indictment, the instant drug

conspiracy offense for which Tommie Hass was convicted ended on

September 11, 1996, well before Tommie’s prior felony drug offenses

became final.

The Government attempts to salvage Tommie’s sentence

enhancement by arguing that Tommie continued to engage in

substantial drug-related conspiratorial activity up until his

arrest on October 12, 1996. These facts, even if true, are not

relevant to the § 841(b) enhancement. We read the statute as

authorizing enhancement only if the felony drug offense, for which

the defendant was convicted, is committed after the prior

convictions have become final. Tommie was convicted of the felony

drug conspiracy offense as charged in the Indictment. The

Indictment alleged that this conspiracy ended on September 11,

1996, and Tommie does not stand convicted for conduct occurring

after that date. Thus, the only relevant conduct for purposes of

the § 841(b)(1) enhancement is conduct which occurred on or before

September 11, 1996, the date the offense ended. Because this date

is some fifteen days before Tommie’s prior convictions became

final, Tommie committed the conspiracy offense before his prior

convictions became final, and the district court erred in enhancing

Tommie’s sentence to life imprisonment.

D.

We are left with the Hass brothers’ arguments that the trial

court erred in (1) admitting evidence of Tommie’s October 12, 1996

arrest for possession of methamphetamine, (2) restricting the

14
cross-examination of a government witness, and (3) adjusting

Buddy’s offense level pursuant to U.S.S.G. § 3B1.1(c) for being a

supervisor/leader in the drug conspiracy. After reviewing the

record and the arguments of the parties, we find no abuse of

discretion or other error in the district court’s rulings on these

issues.

III.

For the reasons stated above, we AFFIRM the convictions of

Richard “Buddy” Hass and Tommie Hass for conspiracy to manufacture

and distribute methamphetamine. We also AFFIRM Buddy Hass’s

sentence. However, because the Government failed to establish that

Tommie Hass had two final felony drug convictions at the time of

the commission of the instant offense, we VACATE the district

court’s imposition of a life sentence for Tommie Hass, and REMAND

for his resentencing.

AFFIRMED IN PART, VACATED IN PART, and REMANDED.

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