PUBLISH
IN THE UNITED STATES COURT OF APPEALS
Filed 8/23/96
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) No. 95-3023
)
CLAYTON ALBERS, )
)
Defendant-Appellant. )
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 93-10020-01)
D. Blair Watson, Assistant United States Attorney (Jackie N. Williams, United States
Attorney, with him on the brief), Wichita, Kansas, for Plaintiff-Appellee.
Susan L. Foreman, Assistant Federal Public Defender (Michael G. Katz, Federal Public
Defender, with her on the brief), Denver, Colorado, for Defendant-Appellant.
Before PORFILIO, HOLLOWAY and MURPHY, Circuit Judges.
HOLLOWAY, Circuit Judge.
This is a timely direct appeal from the defendant/appellant’s conviction and life
sentence for conspiracy to manufacture methamphetamine with intent to distribute in
violation of 21 U.S.C. § 846; possession or distribution of ephedrine knowing, or having
reasonable cause to believe, that it would be used to manufacture methamphetamine, 21
U.S.C. § 841(d)(2); and manufacture of methamphetamine with intent to distribute in
violation of 21 U.S.C. § 841(a)(1). We have jurisdiction under 28 U.S.C. § 1291.
Defendant Clayton Albers was originally indicted on February 24, 1993, along with
Michael Marino, Janet Raisner, Patrick Cambron, Joe Vergilio, Jack Francis, and Anthony
Feher. James Randa was added as a conspirator in the second superseding indictment. All
seven of the others indicted eventually entered guilty pleas and defendant Albers proceeded
to trial in November and December of 1993. That first trial resulted in a mistrial because the
jury could not reach a verdict. In a second trial in September 1994, defendant Albers was
convicted on all three counts of a third superseding indictment. He received a life sentence
and now brings this appeal.
I
FACTUAL BACKGROUND
A
The government presented evidence at trial tending to show that the original
defendants, who all had entered guilty pleas, were involved in a venture to manufacture
methamphetamine for distribution. Patrick Cambron, a nephew of defendant Albers, was the
first prosecution witness. Cambron testified that while incarcerated in California in 1990,
2
he was told by another inmate some of the basics of making methamphetamine. Cambron
decided to try to get involved in manufacturing methamphetamine after his release.
To do so, Cambron needed to find a source for ephedrine, a precursor chemical. In
February 1991, shortly after his release, Cambron attended the wedding of his brother in
Houston. Defendant Albers, who lived in Wichita, Kansas, and had not seen Cambron in
several years, also attended the wedding. Defendant and Cambron conversed at the wedding
reception. Cambron testified that he learned then that defendant Albers had started a
fertilizer business in Wichita called Agri-Data. During this conversation Cambron brought
up the possibility of obtaining ephedrine to be used in the manufacture of methamphetamine.
Cambron told defendant that after manufacture, each pound of methamphetamine would be
worth about $10,000. Cambron testified that defendant said he was interested and that if
Cambron came up with the money he should call defendant. (XII R. at 80-82.) Cambron
told defendant that as a legitimate reason for ordering ephedrine, the cover story could be that
it could be used in poultry feeds. (Id. at 83.)
Cambron testified that he contacted others and raised ten thousand dollars from
Michael Marino and Jack Francis with which to purchase ephedrine. Cambron and Marino
flew to Wichita to meet with defendant. (Id. at 86-92.) Upon first arriving in Wichita,
Cambron met with defendant at a restaurant. Cambron said that he agreed that defendant
would be paid $50,000 and that Stuber, a business partner of defendant in Agri-Data, would
be paid $15,000 out of the proceeds if the ephedrine could be obtained. Stuber later joined
3
them at the restaurant. (Id. at 94-95.) Among other things, defendant Albers, Cambron, and
Stuber discussed what explanation could be given for ordering quantities of ephedrine,
including Cambron’s idea of saying it was to be used as poultry feed and the suggestion
discussed by defendant and Stuber that they could say it was to be used in the fertilizer
business as a plant growth regulator. (Id. at 92-96.) Later Cambron introduced defendant
to Marino, and $10,000 was given to defendant by Marino for the cost of the chemical. (Id.
at 98.) Marino soon returned to his home in California, but Cambron stayed in Wichita at
defendant’s apartment for several weeks to obtain the chemical, during which time he was
frequently in the offices of Agri-Data in Wichita.
Cambron began trying to find a chemical company from which to purchase ephedrine.
Cambron tried telling one company that he wanted ephedrine to use in poultry feed, but that
company advised him that the FDA did not approve of that use of ephedrine. Cambron
eventually contacted a chemical supplier in New Jersey which said that it could provide
ephedrine. Defendant then made arrangements by telephone to initiate an order for four
drums of ephedrine, for which a company check from Agri-Data was issued. Defendant
signed a form indicating he was aware that ephedrine was a precursor chemical subject to
drug trafficking laws and that the ephedrine was to be used as a plant growth regulator in the
company’s business. (Id. at 316-18; XIV R. at 930.) The supplier contacted the DEA,
which told him to fill the order but to let the DEA know if a second order was placed.
The ephedrine was shipped to Agri-Data in four barrels in mid-May 1991. Cambron
4
had gone several times to Agri-Data’s facility in Belle Plain where the fertilizer plant and
storage tanks were. (Id. at 102.) Cambron and defendant were present when the delivery
was made to the Belle Plain facility, and Cambron testified that he immediately removed the
identifying labels from the barrels to prevent employees from speculating about why the
company had ordered ephedrine. In court, Cambron identified the four drums which were
exhibits. (XII R. at 113.) Cambron said that in the middle of the following night, Cambron
and defendant went back to the plant and, according to Cambron, repackaged the chemical
in cardboard boxes. Cambron said they checked the barrels for tracers or tracking devices.
Cambron said defendant Albers held each drum and tipped it up, and Cambron sifted through
it with his hands to make sure there was nothing in the powder. They refilled the barrels with
potash and a very small amount of ephedrine to provide credence for the cover story that the
ephedrine was being used in fertilizer. (XII R. at 111-18.) (Cambron's testimony that
defendant Albers returned with him late at night to the plant and went through the drums was
flatly denied by defendant.) (XIV R. 939.)
Cambron then shipped the boxes of ephedrine to Marino in California and traveled
there separately. The ephedrine was used by Francis and perhaps others to manufacture a
large quantity of methamphetamine. Cambron was involved in distribution of much of the
methamphetamine manufactured from the ephedrine. Cambron eventually sold about 80
pounds of methamphetamine for a total of approximately $800,000. (Id. at 128-29, 212.)
Cambron testified that he sent, directly or through others involved in the scheme, $37,000
5
in eight separate wire transfers to defendant. (Id. at 134-37.) Cambron also arranged for the
shipment to defendant of a Federal Express package containing $15,000. In addition,
Cambron testified that defendant traveled to California at least once to receive more of the
proceeds, getting about $20,000 on that occasion. (Id. at 132-34, 139-42.) Mike Marino and
Joe Vergilio gave testimony regarding their involvement in some of these payments to
defendant. As discussed below, there was also evidence introduced during cross-
examination of the defendant that he received a cashier’s check for $5,000 on another
occasion. (XIV R. at 984-986.)
Two former employees of Agri-Data testified that during the summer of 1991
defendant brought a large amount of cash to the office. Sarah Downey was the bookkeeper
for Agri-Data from the time of its formation in late 1990 until March 1992. (XIII R. at
471-72.) Ms. Downey testified that the company was experiencing constant cash shortages
during the spring and summer of 1991. (Id. at 476.) She said that once during this time she
told defendant that some bills were due, including one for a purchase of fertilizer, and that
the company did not have the funds to pay these bills. Defendant told her he would take care
of it. He left the office and returned a short time later with a large amount of cash, which she
estimated to be about $15,000. She testified that defendant said he did not want to deposit
the cash into the bank because the bank would have to report a cash deposit of over $10,000.
(Id. at 477-78.) She said that defendant asked several employees if they would write checks
on their personal accounts and take some of the cash so that the company could deposit their
6
checks instead of cash. A customer’s check was received shortly thereafter, however, and
the idea of taking checks from employees was never implemented. (Id. at 478-79, 482.)
A few weeks after receipt of the ephedrine, Cambron was arrested in California for
attempting to trade methamphetamine for marijuana. Released on bond, Cambron continued
selling methamphetamine. Cambron returned to Wichita sometime in late July or early
August, 1991, and stayed with defendant for about a week. Cambron said that he, defendant
and Stuber discussed a second purchase of ephedrine during this time and planned to try to
buy twice as much as they had the first time. (XII R. at 143-46.) Cambron testified that he
later sent $10,000 to defendant for a second purchase. He said that he arranged through Joe
Vergilio to have a friend of Vergilio’s, Vickie Arias, deliver the money to Wichita in late
August, 1991. (Id. at 149-153.) Cambron said that he talked with defendant on the telephone
to arrange for defendant to meet Arias at the airport and, after her arrival, had a telephone
conversation in which defendant confirmed receipt of the money. (Id. at 152-53.) Vergilio
testified about participating in these arrangements. Vergilio also testified that Cambron had
lived with him during parts of the summer of 1991. He said that he once received a
telephone call from defendant in which defendant first asked for Cambron, who was not there
at the time, and then asked Vergilio to tell Cambron to hurry and send the money for the
second purchase. (XIII R. at 586-87.)
Vickie Arias testified that she flew to Wichita at the request of Vergilio and Cambron
and delivered money to defendant, although she believed the amount had been only about
7
$2,500. (Id. at 333-37, 343; XIII R. at 597.) The manager of the Motel 6 in Wichita
identified a registration card that had been filled out on August 23, 1991, which was then
shown to the jurors. Defendant later testified that he registered for a room after meeting
Arias at the airport because she was “tipsy,” but defendant denied that he received any money
from Arias or that her trip had anything to do with ephedrine or methamphetamine, to his
knowledge. Defendant said that Arias had arrived very early in the morning, about 5:30 or
6:00 a.m. XIV R. at 946-48 994-97.
An officer of the chemical supply company testified about filling the first order for
ephedrine. He testified that he first talked on the telephone with someone identifying himself
as Pat concerning the company’s ability to supply ephedrine, and the next day received a
telephone call from someone identifying himself as Clayton. He also testified that a second
order for ephedrine was placed by defendant which was dated August 29, 1991, and received
by his company on September 4, 1991. (This second order was for 100 kilograms as in the
first order, rather than the larger amount which had been discussed.) The supplier was
instructed by the DEA not to fill the second order. (Id. at 322-24.)
Over the Labor Day weekend, 1991, just after placing the second order for ephedrine,
defendant went to California again. According to Cambron, defendant met there with
Cambron and others involved in the scheme to discuss Cambron’s arrests (he had been
arrested a second time by then) and the second order for ephedrine. (Id. at 157, 322-24;
XIII R. at 519.) Cambron, Vergilio and Marino all testified that the group, including
8
defendant, met first at a restaurant and then went to a motel room to continue their
discussions in greater privacy.
Officer Michael Clark testified that he was with the Wichita Police Department and
was assigned to work with the DEA task force. As a result of the ephedrine supplier’s
notification to the DEA about Agri-Data’s second order for ephedrine, the task force began
an investigation. On September 5, 1991, just after defendant returned from California,
Officer Clark and DEA Agent Stansbery came to Agri-Data’s Wichita office to inquire about
the orders for ephedrine. (XIII R. at 657-58.) The two officers interviewed defendant and
Scott Stuber. Officer Clark testified that defendant's language was very calm but his hands
were shaking very much. (Id. at 659.) Defendant told the officers that the ephedrine had been
used in an experimental fertilizer program and showed them field maps purporting to show
where the mixture containing ephedrine had been applied to crops. Clark testified that
defendant told them that all of the ephedrine had been used and that the experiment was the
idea of Dr. Joe Waters, an agronomist who had served as a consultant for Agri-Data. (Id. at
660-61.) When asked about Patrick Cambron, defendant said that he had not seen Cambron
since the wedding in Houston in February. (Id. at 662-63.)
Officer Clark later went to Agri-Data’s Belle Plain facility and asked Donald Guthrie,
the employee in charge there, about the ephedrine. Guthrie showed Clark the four barrels.
Although defendant had said that the ephedrine had been dumped out of the barrels and
mixed with potash, the barrels were not empty. (Id. at 665-68.) The barrels were later
9
seized, and chemical analysis revealed that the barrels contained mainly potash and less than
1% ephedrine. (XIV R. at 782-84.)
Officer Clark also testified that records of long distance telephone calls from five
sources had been obtained and analyzed. The records were from the Agri-Data office in
Wichita, defendant’s residence, Agri-Data’s mobile telephone, the residence of Joe Vergilio
in California, and Mike Marino’s residence in California. (XIII R. at 685.) A chart
summarized the results of the analysis, showing the date and time that each call had been
made, the length of time elapsed during the call, and the total number of calls between each
of the Wichita numbers and each of the California numbers. This evidence showed that
frequent contact was being made between Wichita and the two California residences during
the relevant time period, although of course such evidence could not discern between calls
made to or by defendant and those made to or by Cambron during the time that he was in
Wichita. Among the calls shown by these records were two from the Agri-Data mobile
phone to Vergilio’s residence, one on August 21, 1991, and the second one two days later.
Officer Clark first testified that this second call had been made at 4:47 p.m. (id. at 688), but
then testified that he had made a mistake and that the records actually showed that this call
had been placed at 4:47 a.m. on August 23rd (id. at 712, 739). The Motel 6 registration card
showed that defendant had registered there on August 23rd. (Id. at 688-89.)
Dr. Joe Waters was a prosecution witness. He testified that he is an agricultural
consultant with a Ph.D. in soil science and agronomy. (XIII R. 741.) He said agronomy
10
basically is the growing of plants and the structure of plants and producing crops, and soil
science is a study of soils and the interaction of chemicals in soils and fertilizers to produce
the crop. Dr. Waters said he has approximately five years of background in chemistry. (Id.
at 741-42.) Dr. Waters said that he knew defendant Albers because he and Scott Stuber
acquired Waters' services and those of an associate of his to become their consultants in
about 1991. Waters testified that he did not provide any fertilizer formulas to Albers that
contained or utilized a drug known as ephedrine. (Id. at 743.)
Dr. Waters testified that in the last seven or eight years he had spent probably 60% of
his time in research on fertilizers alone and plant growth regulators. (Id. at 743.) He said
that in addition to his own experimentation in fertilizer and compounds that enhanced plant
growth regulators, he had read scientific studies and conclusions of others in that area. (Id.
at 744.) He has worked with some of the better consultants in the United States, and he said
that he is recognized as the number three consultant in California. (Id. at 745.) He has
co-authored a "Western Fertilizer Handbook" used as a text in 15 universities. He testified
he has never heard of a drug known as ephedrine being used as a plant growth regulator.
(Id.) Dr. Waters said that what they were trying to do with Agri-Data was to use modern
technology used in the United States to put preplant fertilizer down with the seed. (Id. at
747.) He added that if a fertilizer test for a new combination of ingredients for fertilizer was
to be conducted, and someone else's land is to be used, you must have the landowner's
permission before the test is conducted. If the wrong product was being tested, the soil could
11
be sterilized and basically ruined in testing. (Id. at 749.)
Cambron was rearrested on the California charges of attempting to trade
methamphetamine for marijuana and was imprisoned there from January to September 1992.
He was contacted there about cooperating with the investigation of Agri-Data. He initially
declined. However, upon learning that others were being subpoenaed to appear before a
grand jury in Wichita, he contacted law enforcement. Then, after being subpoenaed himself,
he implicated defendant. As part of his cooperation with the government, he agreed to place
telephone calls to the defendant which the authorities tape recorded. He identified the
transcripts of two of these recorded conversations, which took place on October 20, 1992,
and November 4, 1992. The tapes were then played for the jury during his testimony and
were replayed, at least in part, during the government’s cross-examination of the defendant.
(XII R. at 162-181.)
Much of the recorded conversations was rather cryptic, and Cambron was asked to
explain portions of them. The portions of the conversations which the government
emphasized dealt with the pending grand jury investigation. In the first call Cambron
informed Albers that grand jury subpoenas had been received by his then wife, Michelle
Cambron, and by Janet Raisner, who was Marino’s wife. He also told defendant that agents
had interviewed Joe Vergilio at his home. (VI Supp. R.) Cambron told defendant that the
agents had asked Vergilio about wire transfers, to which defendant responded, “Oh, you’re
kidding.”
12
In the second taped conversation, Cambron informed defendant that Michelle
Cambron, Janet Raisner, and Joe Vergilio had indeed testified before a grand jury in Wichita.
Cambron said that he had talked with Michelle after her return from Wichita and told
defendant a few subjects he had learned that the grand jury had probed. (VIII Supp. R.)
These included the “little meeting that took place in a motel room,” which Cambron testified
was a reference to the meeting which had occurred on defendant’s second trip to California.
{XII R. at 179.) Defendant had again responded with “You’re kidding.” (As discussed
below, defendant testified that on his second trip to California he met with Cambron and
others in a restaurant, but denied that he went with the group to continue the meeting at a
motel room.) Defendant later mused, “Where did that ever come up at? How did it ever
come up?”
Cambron then is heard on the tape telling defendant that the authorities had
photocopies of wire transfers. Defendant’s response was, “Oh shit. Is that right?” After
Cambron responded simply, “Yeah,” defendant said in the taped conversation: “Well,
somebody’s sure doing a lot of talking.” Cambron also told defendant in this conversation
that the grand jury had asked about “some kind of initial deal of ah . . .50 here, 15 there?
You know?” Defendant’s only response to that was, “Okay.” Cambron testified that this had
been a reference to the original agreement that defendant would receive $50,000 of the
proceeds from methamphetamine sales and Stuber would receive $15,000. (XII R. at 179-
180.) Early in this second conversation, defendant is heard telling Cambron to “be careful
13
of what you say.” Cambron responds by saying, “Well, gonna do that, but I’ll let you know
I’ve got my big phone system on.” (Id.) Cambron testified that he had had several
conversations with defendant when he had been in Wichita concerning a “tap detector” and
“about we need devices.” (XII R. at 162.)
B
As noted earlier, the initial indictment of defendant Albers and the other original
defendants occurred on February 24, 1993. After the first trial produced a mistrial, the
second trial occurred in September 1994. There, defendant Albers testified he was unaware
of Cambron’s plan to use the ephedrine to manufacture methamphetamine. Defendant
testified that Cambron had persistently and enthusiastically advocated experimenting with
ephedrine in fertilizer. Defendant said that he eventually consented partly because he wanted
to convince Cambron to come to work for Agri-Data and thought that agreeing to his
suggestion would serve as an inducement to Cambron. (XIV R. at 927.) He testified that
Cambron seemed knowledgeable about chemicals and that he knew Cambron had worked
with chemicals in his father’s hazardous waste disposal business and when he had worked
with a company that serviced swimming pools. (Id. at 917.)
Defendant’s position was that Patrick Cambron had tricked him into ordering the
ephedrine by touting the prospect of using it experimentally as fertilizer, and that Cambron
then stole the ephedrine from the Belle Plain storehouse and shipped it to California for the
purpose of methamphetamine manufacturing. Defendant admitted that he had gone to the
14
storehouse late at night and emptied the contents of the barrels into bins filled with potash,
but explained that it was not unusual for him to work that late and that he wanted to keep the
experiment a secret from most of his employees in case it turned out well and became a
commercially valuable formula. (XIV R. at 934-38). Defendant said that after he had used
the conveyor belt to dump the ephedrine into the potash bins, he then scooped a few
shovelfuls of the potash and ephedrine mixture back into the barrels to have samples.
Defendant further testified that the potash and ephedrine mixture was later liquefied in
preparation for its use on crops. Defendant Albers and Stuber both testified that the mixture
defendant had made with potash was applied to customers’ fields.
Defendant testified that the money he received by wire was in repayment for a
$20,000 loan he had made to Cambron. Defendant Albers said that Cambron had told him
that he had decided to return to California and go into the garage door business instead of
becoming an employee of Agri-Data. Cambron asked for the loan to get him started in the
business and said he could repay the money in a short time because he was owed that much
by his brother. Defendant said that Cambron had even promised to repay him double the
amount of the loan and did eventually send him $37,000, as the government’s evidence of
wire transfers had shown. (Id. at 938.)
Defendant admitted having made two trips to California during the summer months
after the ephedrine had been received. He said that he made the first trip because Cambron
had invited him to visit California, and he decided to do so since he had been planning a trip
15
to Las Vegas anyway and could easily visit California at the same time. Defendant produced
a hotel receipt from Las Vegas showing that he had been there on the night of July 13, 1991.
(Id. at 941-42.) He said that he won about $22,000 gambling in Las Vegas and had bragged
about his good fortune when he returned to Wichita, showing the money around the office.
(Id. at 943.) Defendant said that his second trip to California, over the Labor Day weekend
of 1991, was in response to calls he had received from several people telling him that
Cambron had been arrested and was in a lot of trouble. Defendant admitted meeting with
Cambron and others at a restaurant during this California trip, but denied that he went with
the group to a motel room to continue the discussions, as others had testified.
Defendant admitted meeting Vickie Arias at the airport in late August, but said that
she had come only to retrieve the objects Cambron had left behind after his week-long visit
earlier that month. (Id. at 946-949.) He said that Cambron had called him to explain that he
was sending someone after his possessions.
Defendant also testified about his interview with Officer Clark and DEA Agent
Stansbery just after his return from California, on September 5, 1991. Defendant said that
he had explained to them the experimental use of ephedrine that he had conducted. He
denied having told the agents that Dr. Waters had come up with the formula for the ephedrine
mixture; he testified that he had told the agents instead only that the ephedrine had been
added to a formula Dr. Waters had earlier developed. He admitted that he lied about not
having seen Cambron in several months. He said that he was shocked and confused at the
16
sudden mention of Cambron’s name at the end of the interview and concerned about
Cambron because of what he had just learned about Cambron’s arrests in California. (Id. at
956.)
On cross-examination defendant admitted that he did not know how Cambron would
have learned about fertilizers while working with hazardous waste disposal and in swimming
pool maintenance. (Id. at 970.) He said that the $20,000 he had loaned Cambron was part
of approximately $33,000 that he had been keeping in his vacuum cleaner at home.
Defendant said that he preferred keeping cash at home to keeping it in a bank just for the
convenient access to the cash, not because he admittedly owed the government several
thousand dollars in back taxes. He admitted that he was aware that the government could
levy on bank accounts to collect back taxes, however. (Id. at 976-77.) Defendant reaffirmed
that the total he had received from Cambron was $37,000. Confronted with a cashier’s check
in the amount of $5,000 he had received and deposited in June 1991, which the government
showed had been purchased by Michael Marino, defendant testified that he had no
recollection of receiving the check and no explanation for it. (Id. at 984-87.) Defendant
conceded that it would have been a “rare event” for him to have received a cashier’s check
in this amount made to him personally. (Id. at 1041.)
Scott’s Stuber’s testimony was generally consistent with that of defendant Albers in
explaining the decision to order the ephedrine for experimental purposes. Stuber testified
that after defendant Albers got back from his Houston trip, Albers and Stuber met with
17
Patrick Cambron at a Denny's restaurant in Wichita. Cambron suggested that Agri-Data
might investigate the use of ephedrine as a plant growth regulator. (XIV R. 846.) It
"stemmed" from Joe Waters to defendant Albers, Albers then had talked to Patrick Cambron,
and Cambron then talked to Albers in Houston about the ephedrine experiment. (Id. at 845.)
Stuber said that he had researched literature on fertilizers and found very little information
except a single reference in one journal indicating that the ephedrine idea had potential.
Stuber testified that Agri-Data did ultimately decide to experiment with ephedrine. (Id. at
848-49.) Stuber admitted that permission had not been sought from the landowners where
the experimental mixture was said to have been applied. (Id. at 883-84.) Stuber said that he
could not identify the landowners or the locations of their fields without consulting records.
Stuber testified that he had not consulted with Dr. Waters or with anyone else regarding
Cambron’s idea for the ephedrine experiment. Stuber said he never agreed with defendant
Albers or Cambron or anyone else to manufacture methamphetamine or to procure ephedrine
knowing it would be used to manufacture methamphetamine. (Id. at 863.) Stuber said that
he was not involved in sending ephedrine to California to be made into methamphetamine
and that he did not believe defendant Albers was so involved. (Id. at 895-96.)
After defendant Albers' convictions at the second trial, at sentencing Albers was given
a four-level enhancement for being a leader or organizer of the criminal activity, which was
challenged below and is disputed on appeal, and a two-level enhancement for obstructing
justice by giving perjured testimony, which is not challenged. He received a life sentence.
18
II
THE CLAIM OF ERROR UNDER FED. R. EVID. 609(a)(1)
Defendant testified in his own defense at trial. His first contention on appeal is that
during cross-examination, the prosecutor made impermissible use of his prior conviction.
Having conceded in a motion in limine that defendant’s previous felony conviction for theft
of property held in trust was admissible for purposes of impeachment under Fed. R. Evid.
609(a)(1), defense counsel chose to reveal the essential facts of the conviction himself during
defendant’s direct examination:
Q: Now, when you were in South Dakota did you get in trouble?
A: Yes, I did.
Q: Would you tell the ladies and gentlemen of the jury what you were
convicted of?
A: I was convicted of grand theft property in trust.
Q: Did you go to prison as a result of that?
A: Yes, I did.
Q: For how long?
A: 33 months.
(XIV R. at 912-913.)
On cross-examination, the following exchange occurred when the prosecuting
attorney turned to the subject of Albers' prior theft conviction:
Q: Now, was it when you were in Western Fidelity Life that you had the little
19
problem with the law that resulted in a felony conviction?
[Albers’ attorney MONNAT]: May we approach, Your Honor?
Objection.
THE COURT: On what grounds?
MR. MONNAT: Beyond the scope.
THE COURT: Beyond the scope. Overruled.
Q: [By the prosecutor, Mr. Watson] What company did you work for when
you were convicted of grand theft?
A: Crop insurance companies in South Dakota.
Q: And that conviction concerned you taking farmers’ money for crop
insurance and not sending the premiums or the applications back to the
insurance company, didn’t it?
A: Yes.
Q: And everything was all right until, of course, storm comes up and the
farmers’ crops are destroyed and you haven’t sent in any insurance premiums,
right?
MR. MONNAT: Objection, Your Honor, that the underlying facts are
irrelevant.
THE COURT: The objection is overruled.
Q: (By Mr. Watson) Isn’t that what happened?
THE COURT: Admit the question for purposes of testing the witness’s
credibility.
Q: (By Mr. Watson) That’s what happened, wasn’t it?
A: Yes.
20
(Id. at 964-65; emphasis added).
Defendant contends that the trial judge erred in permitting the government to develop
the underlying facts regarding his South Dakota conviction relying, inter alia, on United
States v. Wolf, 561 F.2d 1376 (10th Cir. 1977), which years ago staked out the limits on use
of a prior conviction under Fed. R. Evid. 609(a). The rule provides:
For the purpose of attacking the credibility of a witness, (1) evidence
that a witness other than an accused has been convicted of a crime shall be
admitted, subject to Rule 403, if the crime was punishable by death or
imprisonment in excess of one year under the law under which the witness was
convicted, and evidence that an accused has been convicted of such a crime
shall be admitted if the court determines that the probative value of admitting
this evidence outweighs its prejudicial effect to the accused; and (2) evidence
that any witness has been convicted of a crime shall be admitted if it involved
dishonesty or false statement, regardless of the punishment.
In Wolf we adhered to the already well-established rule prohibiting examination into
the underlying facts of prior convictions in recognition of the extremely high potential for
unfair prejudice posed by such evidence. Judge Pickett explained that:
Ordinarily, it is improper for the prosecution to examine into the details of the
crime for which the accused was convicted. The cross-examination should be
confined to a showing of the essential facts of convictions, the nature of the
crimes, and the punishment. Care should be taken to protect the accused as far
as possible from being convicted because of past conduct and not the crime for
which he is being tried.
561 F.2d at 1381.
The government says that the defense failed to object specifically under Fed. R. Evid.
609 to the questioning, making the ruling reviewable only for plain error. The objection as
originally worded did not cite the rule or make a specific objection under it. The initial
21
objection that the cross-examination was “[b]eyond the scope,” presented only the general
theory of the limitations under Rule 609. But as the prosecutor moved on to bear down on
the damaging facts underlying the prior conviction, the objection was spelled out and did
make clear the defendant’s objection that “the underlying facts are irrelevant”; i.e., the taking
of farmers’ money for crop insurance, not sending the premiums to the insurance company,
and storm damage resulting in the farmers having uninsured losses. The objection was stated
clearly under the Wolf rationale that “the underlying facts are irrelevant.” (XIV R. at 965;
emphasis added.)1
The defendant's objection to developing the damaging "underlying facts,” brought
home the essence of defendant’s position to the court and the prosecutor early on. The
objection was overruled and the details were left before the jury, which the judge said was
“for purposes of testing the witness’s credibility.” However, the defendant was entitled to
the protection of the rule that only the prior conviction, its general nature, and punishment
of felony range were fair game for testing the defendant’s credibility. The further damaging
details the prosecutor spelled out were not. Developing such underlying facts violated the
limitations of Rule 609(a)(1) and Wolf. See also United States v. Gordon, 780 F.2d 1165,
1176 (5th Cir. 1986) (after showing of previous offenses, cross-examination properly limited
1
We also note that in Wolf we cited with approval United States v. Harding, 525 F.2d
84, 88-89 (7th Cir. 1975), in which then-Circuit Judge, now Justice, Stevens said: “The rule
that it is error to inquire about the details of prior criminal conduct is so well established that
such error is cognizable despite the absence of any objection by defense counsel.”
22
to exclude attempted questions about “particular facts of . . . previous offenses”)(emphasis
added). Here, the objection was made adequately clear and error occurred when it was
overruled and the inadmissible details were left before the jury.
We must, therefore, determine whether the error was harmless. See 28 U.S.C. § 2111.
In doing so, we are guided by the venerable teachings of Kotteakos v. United States, 328 U.S.
750 (1946), which applied the similar statutory predecessor to § 2111. In particular we
follow the Court's familiar instruction on harmless error analysis:
If, when all is said and done, the conviction is sure that the error did not
influence the jury, or had but very slight effect, the verdict and the judgment
should stand, except perhaps where the departure is from a constitutional norm
or a specific command of Congress. But if one cannot say, with fair assurance,
after pondering all that happened without stripping the erroneous action from
the whole, that the judgment was not substantially swayed by the error, it is
impossible to conclude that substantial rights were not affected. The inquiry
cannot be merely whether there was enough to support the result, apart from
the phase affected by the error. It is rather, even so, whether the error itself
had substantial influence. If so, or if one is left in grave doubt, the conviction
cannot stand.
Id. at 764-65 (footnote and citation omitted).
In applying the Kotteakos test of harmless error, we note first that the prosecutor
improperly bore down heavily on the inadmissible damaging facts underlying the prior
conviction when he cross-examined defendant Albers. And, as defendant argues, the
prosecutor repeated them in his final argument. On the other hand, we have before us the
impressive strength of the array of documentary and testimonial evidence against defendant
Albers showing his involvement in the conspiracy and the methamphetamine venture, and
23
persuasive evidence contradicting and impeaching Albers as detailed in Part I, supra.
The defendant’s version of the facts, which the jury obviously did not believe,
inherently lacked credibility. First, the defendant’s testimony was that he and his partner
decided to embark on the experimental use of ephedrine despite the lack of any reason to
believe that the substance had agricultural usefulness. Although they had sought out the
highly capable assistance of an expert, Dr. Waters, on previous occasions, they decided on
the claimed ephedrine experiment without consulting anyone. And to implement this
program they were willing to invest first $10,000, then a like amount on a second occasion
at a time when their company was in strained financial circumstances. All this was
supposedly based on the enthusiastic recommendation of Cambron, who had no experience
in agriculture generally or fertilizers specifically, and in the hope that conducting the
experiment would induce Cambron to accept employment with Agri-Data. This latter hope,
of course, could not even conceivably have pertained to the decision to order a second
shipment of ephedrine because Cambron had moved back to California more than three
months before the second order was made. The purported decision to loan $20,000 to
Cambron from his "vacuum cleaner" cache -- allegedly made before the claimed good fortune
of winning some $20,000 gambling in Las Vegas -- and Cambron’s alleged generous offer
to repay the loan and an additional $20,000 in a short time, both are similarly difficult to
accept. Defendant’s explanation for bringing a large amount of cash into the office -- the
claimed gambling winnings -- was not supported by the testimony of the two former
24
employees who testified for the prosecution, even though defendant testified that he bragged
exuberantly about his good fortune.
Defendant’s inability to recall receiving the $5,000 cashier’s check, receipt of which
he admitted would have been a “rare event” for him, weighs heavily against his story.
Defendant’s explanation that Cambron had sent Vickie Arias by airplane from California
merely to pick up personal items he had left behind, in addition to its facial implausibility,
left the impression that the sequence of events -- the call to Vergilio’s residence, Arias’
arrival, the 4:47 a.m. call to Vergilio’s residence immediately following her arrival, and the
placement of the order for the second shipment of ephedrine just days later -- was merely a
string of coincidences.
Continuing to review carefully all of the evidence, we note defendant’s highly
incriminatory expression of surprise and dismay in the recorded telephone conversation with
Cambron when informed that the government had asked about wire transfers when
interviewing Vergilio and his warning to Cambron at the beginning of the second
conversation to be careful in what was said. Defendant also admitted lying to the
investigators in his first contact with them when asked about Cambron. And there was also
the testimony by Officer Clark that Albers said Dr. Waters had suggested a fertilizer
experiment with ephedrine and testimony by Dr. Waters, denying such a suggestion was
made by him and stating he had never heard of such a use of ephedrine. We also think it
significant in this context that facts underlying the prior conviction which were improperly
25
developed did not involve a controlled substance offense. Finally, the jury was instructed that
the prior conviction was not to be considered as evidence of guilt in this case.
We are mindful, of course, that the jury’s verdict here must have rested very heavily
on the credibility determinations that the jurors made and that the erroneously developed
facts constituted an improper additional weapon in the government’s attack on this
defendant’s credibility. Nevertheless, on this record we are satisfied that the error in
developing the details underlying the prior conviction here would have had very slight, if
any, effect on the jury’s verdict and therefore was harmless. See United States v. Wolf, 561
F.2d at 1382 (citing Kotteakos); see also Tuttle v. State of Utah, 57 F.3d 879, 884 (10th Cir.
1995) (applying harmless error standard of Kotteakos).
III
THE CLAIM OF ERROR UNDER TOME
Defendant next argues that the district court erred in admitting evidence of prior out-
of-court statements made by two of the government’s witnesses. In both instances the
evidence was admitted under Fed. R. Evid. 801(d)(1)(B), which provides:
A statement is not hearsay if -- (1) the declarant testifies at the trial or
hearing and is subject to cross-examination concerning the statement, and the
statement is . . . (B) consistent with the declarant’s testimony and is offered to
rebut an express or implied charge against the declarant of recent fabrication
or improper influence or motive . . . .
Defendant concedes that his cross-examinations of the two witnesses raised a charge
of recent fabrication or improper motive. Defendant’s argument that the statements were
26
nevertheless erroneously admitted is based on the “pre-motive” requirement. Under the
"pre-motive" requirement, a prior consistent statement is not admissible unless the prior
statement was made before the motive to fabricate arose. At the time of trial, this circuit had
only recently rejected the pre-motive rule, but that holding was reversed by the Supreme
Court during the pendency of this appeal. United States v. Tome, 3 F.3d 342 (10th Cir.
1993), rev’d, 115 S.Ct. 696 (1995). The Supreme Court held in Tome that Rule 801(d)(1)(B)
incorporated the pre-motive requirement of the common law. Thus, a witness’s prior
consistent statement may not be admitted to rebut a charge of recent fabrication or improper
motive unless the out-of-court statement was made before the alleged motive to fabricate or
the alleged improper influence or motive arose.
Although the trial court’s rulings were correct when made, it is clear that the Supreme
Court’s holding in Tome must be applied here. See Griffith v. Kentucky, 479 U.S. 314, 328
(1987) (new rule for the conduct of criminal prosecutions is to be retroactively applied to all
criminal convictions pending on direct review or not yet final at the time of its
pronouncement); United States v. Lang, 81 F.3d 955, 962 (10th Cir. 1996). On this point,
the government’s argument in its totality consists of the statement that the district court could
not have abused its discretion by adhering to the law as it then existed. This of course is
clearly unpersuasive. The Griffith rationale and Lang make it very clear that we must apply
the Tome decision of the Supreme Court. Accordingly, we must determine if the trial court’s
rulings were incorrect under the pre-motive rule we must follow.
27
The first of the two challenged rulings concerned testimony of one of the investigating
officers, Officer Clark, in which he was permitted to relate a prior consistent statement by
one of the prosecution’s key witnesses, Patrick Cambron. Clark had contacted Cambron
while the latter had been imprisoned in California in 1992 to see if he would cooperate with
the investigation. Cambron had refused. After his release from prison in October 1992,
however, Cambron had called the DEA to express his change of mind and willingness to
cooperate. Defense counsel’s cross-examination of Cambron, the first witness in the trial,
had effectively demonstrated that Cambron had lied under oath before, had frequently lied
to gain an advantage, and had avoided exposure to a potential life sentence by entering into
his plea agreement with the government. The cross-examination had essentially implied that
Cambron’s testimony which implicated Albers had been fabricated.
To rebut this charge of recent fabrication or improper motive, the government offered
Officer Clark’s testimony about his October 1992 interview with Cambron. Defense counsel
made a timely objection and argued that the motive for Cambron to fabricate had already
arisen by the time he offered to cooperate with Officer Clark. (XIII R. at 669-74.) The
government did not then contest this premise of defendant’s argument, but now argues that
defendant’s cross-examination established that Cambron’s motive to fabricate arose after the
statements to Officer Clark in connection with the formal plea agreement and Cambron’s
hope that the government would still file a motion for reduction of his sentence under
Fed. R. Crim. P. 35. We are unpersuaded. Cambron had admitted in his testimony that he
28
did not agree to talk with law enforcement until he had become afraid that all the others
involved in the conspiracy would testify against him. (XII R. at 217.) We find no reason to
doubt that Cambron’s statements to Clark came after Cambron had a motive to falsify.
Consequently, we think it clear that under the Supreme Court’s Tome ruling we must regard
as error the overruling of defendant's objection.
The testimony of Officer Clark which was admitted as a result of this first ruling
consisted of the following:
Q: Can you tell us during the -- I believe you said the October 19th or 20th
statement of 1992, you took from Mr. Cambron, can you tell us generally what
it was he said concerning his involvement with the Defendant and the
ephedrine?
A: He said that he had met with the Defendant, that they had discussed getting
these chemicals.
Q: By these chemicals, you mean what?
A: Meaning the ephedrine. Discussed getting the ephedrine. Hiding the fact
that they were getting it by saying they were going to put it in a fertilizer, and
then they would ship it to California where it would be made into
methamphetamine and that there could be large profits made.
(XIII R. at 675.)
The second piece of evidence admitted at trial as a prior consistent statement and
challenged here concerned a letter which Mike Marino had written to the trial judge. On
direct examination Marino had testified that while he had been in Wichita with Cambron to
deliver the money for the first purchase of the ephedrine to the defendant, defendant had
made a statement that Marino had taken as a threat. Defendant’s statement, according to
29
Marino’s testimony, had been to the effect that because he had been in prison twice before,
“if we were to get busted and tell on him that we’d be through.” (XIII R. at 529-30.)
As with Cambron, defense counsel cross-examined Marino vigorously regarding the
benefits of his plea agreement and his previous denial of any involvement in a
methamphetamine conspiracy. Defense counsel then asked defendant if he had ever before
told law enforcement personnel about defendant’s threatening statement. Marino said that
he had told Officer Clark and another officer. (Id. at 545.) On re-direct examination the
prosecution was allowed to have Marino read the letter now in question to the jury. The
letter was primarily focused on Marino’s complaints about the performance of his attorney.
The statement for which the letter was admitted was: “I want to testify on Clayton Albers
but I am worried he might do something to me.” (Id. at 574.) Defense counsel had objected
to this evidence both on the grounds of the pre-motive rule under Fed. R. Evid. 801(d)(1)(B)
and that the probative value of the evidence was substantially outweighed by its prejudicial
effect under Rule 403. (Id. at 555, 564-65.) The court overruled the objection on the
grounds that the letter was a prior consistent statement and also decided sua sponte to instruct
the jury that the letter was to be considered only as pertaining to Marino’s credibility and not
for the truth of the matter asserted. (Id. at 565-67.) Rule 801(b)(1)(B) currently permits a
properly admitted prior statement to be considered for the truth of the matter asserted, not just
as bearing on credibility. Tome, 115 S.Ct. at 701.
The letter at issue was written after Marino’s guilty plea had been accepted and after
30
he had been sentenced. Defendant argues, as he did at trial, that Marino still had a possible
motive to fabricate as he was asking the court to appoint him a new lawyer and allow him
to appeal his sentence. Defendant also raised at trial the fact that Marino hoped to have the
government file a motion on his behalf for reduction of his sentence. The district judge
apparently concluded that Marino had a motive to falsify at the time that he wrote the letter
because the judge expressly based his ruling on our opinion in Tome, as he had with
Cambron’s prior statement. (XIII R. at 565.) There is no argument to the contrary by the
government. Thus we feel that the statement in issue was made when the declarant had a
motive to falsify. It follows that the admission of the statement was error under the new rule
of Tome.2
2
The government argues, however, that the Marino statement was admissible in any
event because under the court’s limiting instruction to consider the letter only as it pertained
to Marino’s credibility, the letter was not hearsay at all. We disagree. This argument would
severely undercut the holding of Tome by allowing otherwise inadmissible evidence to be
heard under a limiting instruction. We think this would be inconsistent with much of the
reasoning of Tome.
The Court there reviewed the prevailing common law before the adoption of the
Federal Rules of Evidence. The Court noted that it was well established that the common
law permitted prior inconsistent statements to rebut a charge of recent fabrication only if the
prior statement had been made before a motive to falsify had arisen and permitted the
statement to be received only for the limited purpose of supporting the witness’s credibility,
not for the truth of the matter asserted in the prior statement. Tome, 115 S.Ct. at 700-01.
Fed. R. Evid. 801(d)(1)(B) dropped the limitation on the use of the evidence but, the Court
held, did not alter the pre-motive requirement.
The government now suggests that the rule, sub silentio, also modified the common
law rule by incorporating an exchange whereby the proponent of the evidence could forego
the advantage of the rule’s unrestricted use of the prior statement and in return be relieved
of the pre-motive requirement. It is sufficient to say that nothing at all in the language of the
rule or the accompanying commentary provides support for the contention that the common
31
Accordingly, we must determine whether the erroneous admission of the parts of the
evidence discussed above was harmless. With respect to the statement of Cambron to Officer
Clark, we note that defense counsel mounted a vigorous cross-examination of Cambron,
effectively attacking his credibility. Defense counsel ably developed the factual context
showing that Cambron could have been motivated by his hope of receiving leniency when
he made these statements to Officer Clark. The jury simply chose to believe that Cambron
was testifying truthfully, despite defense counsel's efforts to show why the jurors should not
believe Cambron's testimony. We think that the statement to Officer Clark played an
insignificant role in that assessment.
With respect to the Marino letter and the threat which defendant suggests was made,
we likewise feel that the admission of the evidence was harmless error. Evidence of a threat
certainly can have a substantial impact. As to the Marino letter, however, the disputed
evidence merely repeated previous testimony that a threat had been made. An erroneous
repetition of such evidence clearly must be expected to have less influence on the jury than
an error which injects something like this into the trial when it otherwise would have
remained unknown to the jury. Considering that the prior statement by Marino in the letter
is only one sentence out of a lengthy trial, and in view of the overall case against defendant
Albers, we feel this error was harmless.
In sum, the two evidentiary matters which were admitted in violation of the
law rule has been so substantially amended by Fed. R. Evid. 801(d)(1)(B).
32
pre-motive rule and Tome, we hold to have been harmless error.
IV
THE CLAIM OF ERROR IN THE COURT’S QUESTIONING
OF A GOVERNMENT WITNESS
We next consider defendant’s contention that the district court created an appearance
of partiality by its questioning of one of the government’s witnesses. We review the
propriety of a judge’s examination of a witness for abuse of discretion. United States v.
Latimer, 548 F.2d 311, 314 (10th Cir. 1977).
The witness in question is Donald Guthrie, who was the manager of Agri-Data’s Belle
Plain facility, where the barrels of ephedrine were delivered. Direct, cross, re-direct, and re-
cross examination of Guthrie had been completed before the judge began asking questions.
In his direct examination Guthrie had testified, among other things, that defendant had called
him twice at Agri-Data’s Belle Plain warehouse from Agri-Data’s Wichita office regarding
the shipment of ephedrine in May. Guthrie testified that defendant had called him once to
tell him that he was expecting a delivery of chemicals from a delivery service and wished to
be notified when the chemicals arrived. Guthrie said that the second call came on the day
of the delivery when defendant called to tell Guthrie that the delivery service had confirmed
that the shipment had come in and would be delivered to Belle Plain later that day. (XIII R.
at 401-02.) The witness said that it was unusual for Mr. Albers to have done this.
After receipt of the barrels of ephedrine Guthrie said he asked defendant on several
occasions what the material would be used for and that he first received non-committal
33
responses, until finally defendant told him that the chemical was to be used on crops. (Id.
at 404-05.) Guthrie was later interviewed by DEA agents at the Belle Plain facility and
testified about that discussion, which culminated in the execution of a search warrant and the
seizure of the barrels in which the ephedrine had originally been shipped. Guthrie testified
that the following day he showed a copy of the search warrant to defendant, and Guthrie
described defendant’s reaction. Guthrie said that defendant began pacing the floor and acted
“jittery.” (Id. at 408.) He went on to say that defendant responded to the fact that the DEA
agents had seized the barrels by chuckling to himself and saying, “Well, they’re not going
to find anything in