United States v. Humphrey

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
APR 4 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.
Nos. 99-8001 &
99-8002
CARLTON HUMPHREY; NANCY
REGAN,

Defendants-Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
(D.C. Nos. 97 CR-104-01-D & 97-CR-104-02-D)

David A. Kubichek, Assistant United States Attorney (David D. Freudenthal,
United States Attorney, with him on the brief), Casper, Wyoming, for Plaintiff-
Appellee.

Peter J. Young, Schwartz, Bon, Walker & Studer, Casper, Wyoming, for
Defendant-Appellant Humphrey, and G. Mark Garrison, Cody, Wyoming, for
Defendant-Appellant Regan.

Before LUCERO, HOLLOWAY and MURPHY, Circuit Judges.

HOLLOWAY, Circuit Judge.
 Defendants/Appellants Carlton Humphrey and Nancy Regan were jointly

indicted on one count of conspiracy to possess methamphetamine with intent to

distribute, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 846, and one count of possession

of methamphetamine with intent to distribute (and aiding and abetting the same), 21

U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 18 U.S.C. § 2. After trial together, both were

convicted on both of those counts. The jury reconvened later and returned a verdict

for the government on a forfeiture count, which does not concern us on this appeal.

Each defendant filed a timely notice of appeal. We will consider the appeals

together because there are several common issues.

I

A

The following summary of the trial evidence is, for the most part, taken in the

light most favorable to the jury verdicts; at times, however, points raised by the

defense will be mentioned to provide context for the analysis which follows, even

though the jury was not convinced by the defense evidence.

In the spring of 1997, Alvin Bauerlein was terminally ill with cancer. Mr.

Bauerlein lived on Jefferson Street in Casper, Wyoming, with his then fourteen year

old daughter, Judith. Nancy Regan also lived in his home, where she took care of

Mr. Bauerlein and did cooking and housekeeping. Carlton Humphrey, a friend of

Regan, stayed at the house at times and was a frequent visitor. One Yno Martin, a

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friend of Judith, also lived in the house for a few months in the summer of 1997,

staying in the basement with Judith. Patricia Harris (later Patricia Bauerlein), known

as Patty, became acquainted with Alvin Bauerlein through a cancer support group.

Patty also eventually came to stay in the house on Jefferson Street.

In late May of 1997, Mr. Bauerlein was gravely ill and in the hospital. On

May 29 Alvin and Patty were married in the hospital room. Patty then moved into

the house on Jefferson Street, where she lived for a few weeks. Alvin Bauerlein died

five days after the marriage. A few days after that, Regan was appointed Judith’s

guardian.

Judith Bauerlein had begun using methamphetamine in January or February,

1997. Testifying for the prosecution at trial, Judith said that she had been dealing

methamphetamine during 1997, often having several thousand dollars in cash or

several ounces of methamphetamine at a time. In mid-August, 1997 Judith was

arrested and confined in a juvenile facility. Sometime in August Patty Bauerlein

contacted Chuck Davis, who was an investigator with the Natrona County Sheriff’s

Department. Patty asked Davis to meet her at her mother’s residence, where she had

been living since late July, and he did so. Patty told Davis that Defendants Regan

and Humphrey were dealing methamphetamine and that she wanted to put a stop to

it because they were involving Judith in their activities. Patty continued to contact

Davis about once a week for the following few weeks.

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 In late August, 1997 Patty contacted Davis with a specific tip. She said that

Humphrey and Regan were going to Cheyenne to make a drug buy and gave a

particular location where she believed they could be found. Officers in Cheyenne

were unable to locate the Defendants that day, and Patty testified that she later

learned that Defendants had gone to Denver instead of Cheyenne that day. On

September 5 Patty again called Davis and reported that Humphrey had a large amount

of methamphetamine in his possession and was in Casper, probably driving a green

pickup. Officers were unable to find Humphrey that night.

On the morning of September 6, 1997 Patty called Davis again. She said that

she and Judith were to meet Humphrey and Regan for breakfast at the Flying J truck

stop in Casper. Several officers gathered near the truck stop and spotted Defendants

leaving in Humphrey’s green pickup. By this time, the police had determined that

the pickup was registered to Humphrey, that he was driving under suspension, and

that there was an outstanding warrant for his arrest. Police stopped the pickup with

Humphrey and Regan in it after it left the truck stop. As the pickup was slowing

down and pulling over, police saw defendant Regan ducking down and moving as if

she were moving something on the floorboard of the pickup. When Humphrey

produced his identification he was arrested on the outstanding warrant. He was

handcuffed and placed in a patrol car. The officers searched Humphrey’s pockets

and found $3,492 in cash, as well as a money order for $500.

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 While Humphrey was being arrested and searched, another officer asked Regan

to get out of the pickup and talked with her. In the meantime, other officers found

a tan satchel in the floor of the pickup on the passenger side. Opening the satchel,

they found two large bags containing what they believed to be, and what was later

proven to be, methamphetamine totaling over 600 grams. Regan was then arrested.

Subsequent search revealed a small quantity of methamphetamine, about 3 grams, in

her purse (the first purse). She had only a small amount of cash. The pickup was

impounded and taken to the police station, where it was thoroughly searched. Small

additional amounts of drugs were found, along with some drug paraphernalia.

Patty had also told Davis that Humphrey had left his Dodge automobile in the

garage at Patty’s mother’s house, where she was staying. Immediately after the

arrest of the Defendants, the officers sought a search warrant for the Dodge. Patty,

Judith, and Yno Martin had witnessed the arrests. They went from there to Patty’s

mother’s house, where they destroyed small amounts of drugs, and Judith removed

some photos from the Dodge. About forty-five minutes later, officers arrived to

secure the location pending issuance of the requested search warrant.

The warrant was issued and the Dodge was searched later that day. The trunk

of the car contained, inter alia , another $4,000 in cash, a loaded pistol, and a

notebook with handwritten numbers and notations. The notebook was admitted in

evidence at trial, and was said in expert testimony to be a drug ledger. Patty

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Bauerlein identified the handwriting in the notebook as that of Defendant Regan. In

addition to searching the car, the police looked through some items that Patty had

identified as belongings of the defendants; nothing incriminating was found in these

items.

About a month later, Patty called Davis to report that she had found something

which might be evidence in the case. Davis went to Patty’s residence and she gave

him a purse which she said belonged to Nancy Regan (the second purse). The second

purse contained documents which were admitted at trial and, like the notebook found

in the trunk of the Dodge, identified as records of drug transactions. Davis testified

that he was no longer working on the case at that point and that he took the purse

back to his office and forgot about it. The purse remained in or on his desk for

several weeks, perhaps as long as two months, before he notified anyone else that he

had obtained it. The purse was later opened and the documents already described

were found. 1

B

Defendants filed motions to suppress the documents found in the second purse,

and Humphrey also moved to suppress all evidence seized at the time of his arrest.

Defendants argued that the seizures violated their Fourth Amendment rights. The

district court denied the motions and these rulings premise several arguments we

Other inculpatory evidence, primarily from testimony of Patty Bauerlein and
1

Judith Bauerlein, will be discussed infra in our analysis of the issues.

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consider in Part III, infra .

A first attempt to try Humphrey and Regan was aborted when during voir dire

one of the prospective jurors made a remark about Humphrey’s reputation in front

of all the panel. A new trial was granted. Defendants were convicted in that trial.

II

The Defendants present several claims of error as grounds for reversal and a

new trial. One of the most troubling is their assertion of juror misconduct and

prejudicial taint of the jury. About three months after trial, Defendants asked the

judge to investigate an allegation of juror misconduct. Regan’s lawyer had heard,

indirectly, that one of the jurors had said that another juror had brought up something

about Humphrey’s reputation during deliberations. The attorney was eventually able

to contact the first juror, whom we will refer to as Juror #1, who gave him essentially

the same information that the attorney had first received. 2

At that point, the attorney notified the court by a May 12, 1998 letter and an

investigation of the allegation by the judge began. See n.4, infra. At the first of two

hearings to investigate these allegations on June 30, 1998 Juror #1 testified that Juror

#2 said, “Oh, my God, I live in Douglas, and I even know the Humphreys’

The trial judge caused proceedings on this claim to be protected from disclosure
2

by having them in chambers, with only counsel present, and by having transcripts of the
proceedings sealed. For similar reasons we will refer to the jurors by numbers or as the
foreperson of the jury.

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reputation.” 3 After hearing Juror #1’s testimony the judge remarked that according

to his memory, there had been only one juror from the town of Douglas. The judge

confirmed with the court clerk that the court’s records would enable them to identify

Juror #2. The judge then stated his intention to identify Juror #2 and to have that

juror and another juror appear for further inquiries in the presence of the parties. He

said, “I’ll ask the clerk of court to contact these individuals and make a time for

them to come in and see me as soon as possible.” XV R. 14. The judge also ordered

all counsel not to make any more contacts with members of the jury.

The judge himself later contacted (without participation by counsel) the

foreperson of the jury whom he wished to question to arrange an appearance at a

second hearing held on August 10, 1998. The foreperson testified at that hearing that

there was no statement made by a juror about Mr. Humphrey’s reputation. Since

being contacted by the judge, the foreperson had searched his memory but no such

remark was recalled. After that testimony, the judge stated that he was convinced

by the foreperson’s testimony that there was nothing to the allegation of a remark

having been made about Humphrey’s reputation. XVI R. 17. The Defendants’

renewed motion for a new trial was denied and the judge turned to sentencing the

Defendants.

3
Inquiry here was limited to whether the jury had been exposed to extraneous
information regarding the reputation of Humphrey in the community, and there was no
effort to explore the possible effect on the jurors of that extraneous information, an area
that is strictly off limits under Fed. R. Evid. 606(b).

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 The reported remark about Humphrey’s reputation by Juror #2 underlies two

claims of error. First, both Defendants argue that restriction of the investigation of

the alleged prejudicial remark concerning Humphrey’s reputation by a juror during

deliberations was error, requiring reversal. Appellant Nancy Regan’s Brief at 32-35;

Brief of Defendant-Appellant Humphrey at 27. Second, Regan argues that the direct

contact by the judge, without counsel’s knowledge, with the foreperson of the jury

requires reversal or at least remand to determine the nature and extent of the direct

communication and its effect on Regan’s trial. Appellant Nancy Regan’s Brief at 40.

We are persuaded that both cases must be remanded for further proceedings

and findings on these issues and for the judge’s determination as to an adequate

remedy to insure that the Defendants’ rights to a fair trial were not infringed. We

turn now to these issues.

A

First , we will consider questions arising from Juror #1’s testimony about an

alleged remark concerning the Humphreys’ reputation. Regan argues that the trial

judge abused his discretion in failing to investigate adequately the possibility that

Juror #2 from Douglas may not have responded honestly during voir dire

examination and thereby concealed having unfavorable information about Humphrey

and potential bias against Humphrey; and that the judge abused his discretion by

failing to investigate adequately the possible injection of extraneous considerations

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in the jury deliberations.

How and whether to have a hearing on a claim that jurors were improperly

exposed to extraneous information is within the trial court’s sound discretion. See

United States v. Davis , 60 F.3d 1479, 1483 (10th Cir. 1995). We agree with the Sixth

Circuit that “the court must investigate sufficiently to assure itself that constitutional

rights of the criminal defendant have not been violated.” United States v. Rigsby , 45

F.3d 120, 125 (6th Cir. 1995). Neither Defendant asserts error in the court’s decision

to control the investigation by having proceedings in camera and by barring direct

contacts by the attorneys with the jurors. The district judge took this matter seriously,

declaring his intention to “do what has to be done here to ferret out the truth . . . .”

Nevertheless, we are convinced that we must remand these cases for further

proceedings in the trial court on these matters concerning possible jury taint as

explained below. We will, therefore, outline general guidelines for the investigation,

consideration and disposition of claims such as are presented here.

We agree with the district judge that the matters presented to him required

investigation here. We must decide whether the judge abused his discretion by

limiting his investigation and the scope of his findings as he did. Our conclusion that

the judge erred is based on the mandate that “the court must investigate sufficiently

to assure itself that constitutional rights of the criminal defendant have not been

violated.” U.S. v. Rigsby , 45 F.3d 120, 125 (6th Cir. 1995).

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 At the conclusion of the hearing of August 10, 1998, where the foreperson of

the jury was questioned by the judge and counsel, the judge concluded that the only

issue that was presented to the court was: “[W]as there a conversation in the presence

of all the jurors about the fact that some juror knew the reputation of the Humphreys.”

XVI R. 13-14. The judge said that the fact that two people might have had a

conversation outside the presence of all the other jurors was not something he was

going to delve into; the question was what was said in the presence of all the jurors.

The judge found that the person who had the best recollection of these events was the

foreperson of the jury who had testified, and the judge said he was satisfied the

foreperson had a good reputation and memory and was not someone who would

conceal information from the court under oath. Id. at 14. The foreperson testified

that “as far as reputation, no. There – there – nobody in there said anything about any

of the reputations. . . . . I would have remembered if something like that were said;

and as far as ‘their reputation,’ those words never come [sic] out of any juror’s

mouth.” Id. at 7-8. The judge then concluded:

I’m convinced by [the foreperson’s] testimony. I’m convinced that there
is nothing to the allegation and I’m going to proceed to sentence the
defendants without any additional delay.

Id. at 14.

We hold that the judge abused his discretion in cutting off the investigation and

his findings as he did. He had heard the testimony of Juror #1, in the June 30, 1998

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hearing where the judge and counsel questioned that juror. During that hearing the

judge said that he had received a letter from counsel for Regan concerning Juror #1;

that counsel had written the judge on May 7, 1998, reporting that he had spoken to

a juror in the case about information that counsel had received from an inmate at a

correction center. XV R. at 4-5. In the hearing the judge addressed Juror #1 because

counsel’s letter indicated that counsel had spoken with the juror about whether

someone on the jury knew Regan or Humphrey. The letter said it was reported that

Juror #1 heard someone say: “Oh, come on, you guys know the Humphrey reputation

around here,” and that there was apparently some acknowledgment of this by another

juror. According to the letter the foreperson then reminded everyone that this matter

could not be discussed. Id. at 5-6. At the June 30 hearing Juror #1 told the judge

there was a juror who “[k]new of Humphrey’s reputation. They did not say good or

bad.” Id. at 6. Juror #1 said that the other juror had exclaimed “Oh, my God, I live

in Douglas, and I even know the Humphreys’ reputation.” Id. Juror #1 said that the

fellow juror, whom we will refer to as Juror #2, had said “[O]h my God, they didn’t

testify to that. You want him out selling drugs to your daughter?” Id. at 9.

Thus, we know that the trial judge had evidence before him that Juror #1 had

reported statements by Juror #2 from Douglas indicating knowledge of the reputation

of the Humphreys. This raises the serious question whether Juror #2 from Douglas

had failed to reveal, on voir dire , having knowledge about defendant Humphrey and

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bias concerning him. The judge had information from counsel for Defendant Regan

reporting that Juror #1 was shocked by the remark concerning knowledge of the

Humphrey reputation, that Juror #1 then went to have a cigarette, and that a Juror #3

also came out with Juror #1. The two of them wondered whether they should come

to the judge with this development but thought they were not supposed to do so.

Letter dated May 12, 1998 from Counsel Garrison to the district judge. 4

In light of the information before him from Juror #1, and the identification of

Juror #3, who was said to have discussed with Juror #1 the alleged remark by Juror

#2 about the Humphreys’ reputation, we are convinced that it was error to cut off the

investigation as was done. 5
The judge instead relied on the foreperson’s testimony,

without developing other evidence to make findings as to the alleged statement by

Juror #2 from Douglas concerning the Humphreys’ reputation. The record shows no

development of the knowledge of Juror #3 about these critical circumstances. Our

gnawing concern is increased by wondering what the judge might have found if he

heard the testimony of Juror #3 and the important Juror #2 from Douglas. The

Douglas juror’s testimony is not only critical about possible taint of the jury panel,

but also as to whether the juror may have harbored bias against Humphrey and failed

4
Defendants’ joint motion to supplement the record, which is unopposed, is
granted. The May 12, 1998 letter, cited in text, appears in that supplemental record.
5
We note that at the August 10, 1998 hearing, counsel for Humphrey favored
calling Juror #3 for questioning. XVI R. at 13.

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to reveal it on voir dire .

In sum, cutting off the investigation and limiting the findings to the

determination that there was nothing to the allegation about the juror’s remarks

concerning Humphrey’s reputation, without developing such further evidence, was an

abuse of discretion.

B

We have examined the transcript of the August 10, 1998 hearing before the

judge. At this hearing the foreperson of the jury was questioned, with government

counsel and counsel for both Defendant Humphrey and Defendant Regan

participating. (Mr. Garrison, counsel for Regan, participated by telephone.)

During that hearing, the judge related in detail information obtained from Juror

#1 and also the fact that the judge had contacted the foreperson to arrange his

appearance for a hearing; and the judge also had asked the foreperson to spend careful

time reflecting on the possibility of a juror’s statement concerning the reputation of

Humphrey. XVI R. 7-8.

Although the contact by the judge with the foreperson of the jury became

known to all counsel at the time of the August 10, 1998 hearing, there was no

objection or motion for relief based on that contact at the time the contact became

known. It was not until a motion for reconsideration (filed September 30, 1998,

Supp. R.) of the denial of a motion for a new trial that the judge’s contact with the

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foreperson of the jury was cited as a reason for a new trial. This delay meant that the

judge and counsel for the parties were unable to develop any additional facts about

the contact at the August 10, 1998 hearing when the foreperson was present at that

hearing. Therefore we are satisfied that the contact by the judge with the foreperson

of the jury was waived as an appellate issue.

C

In sum, we remand for further proceedings and findings on the jury taint

claims. At this juncture we feel we should not order a new trial for the Defendants.

However, in light of the evidence before the trial judge tending to support allegations

of jury taint (on the furnishing of extraneous information to the jurors such as on

Humphrey’s reputation, on the possibility that a juror failed to respond honestly on

voir dire about the juror’s knowledge of information about a party or parties in the

case, and on possible bias against a party or parties in the case) the trial judge should

develop the facts by hearings such as were conducted here, but were cut off without

getting information from Juror #3 who was said to have discussed the reputation

remark with Juror #1, or importantly from Juror #2 from Douglas. The trial judges

in such circumstances should conduct hearings, consider the evidence that the court

and counsel develop in such hearings, and then make findings on the allegations of

jury taint. These procedures should, as this trial judge conscientiously said, “do what

has to be done here to ferret out the truth.”

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 Based on such hearings, investigation and findings, the trial judges should

exercise their sound discretion, as can be done on remand here, to determine whether

a new trial must be ordered or whether the verdicts rendered may stand because the

Defendants’ constitutional right to a fair trial was not infringed. 6
On the basis of

these further investigations and findings, the trial judge should determine whether the

verdicts should stand or a new trial should be ordered.

III

We will now consider the remaining claims of error. In the event the judge

determines that a new trial is required, these further rulings will have been made to

dispose of these issues for those proceedings.

A

Defendant Humphrey challenges the denial of his motion to suppress the

evidence seized from his pickup truck at the time of his arrest. Humphrey challenges

the district court’s ultimate ruling, not its underlying findings, and thus our review

is de novo . See United States v. Anderson , 114 F.3d 1059, 1063 (10th Cir. 1997). In

6
If the judge after further investigation determines that a juror made the alleged
statement about the reputation of the Humphreys, the judge should consider whether the
Defendants are entitled to a new trial on the basis of that juror’s actual or implied bias,
see McDonough Power Equipment, Inc. v. Greenwood , 464 U.S. 548 (1984); United
States v. Carat-Reyes , 176 F.3d 1253, 1258-61 (10th Cir. 1998); Gonzales v. Thomas ,
99 F.3d 978 (10th Cir. 1996), and whether the presumption of prejudice from the
injection of extraneous matters into the jury deliberations is overcome by the
government, see Davis, 60 F.3d at 1484-85; Mayhue v. St. Francis Hospital , 969 F.2d
919, 922 (10th Cir. 1992).

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denying Humphrey’s motion, the trial judge indicated that the warrantless search of

the pickup was proper under either of two theories: the so-called automobile

exception to the requirement of a search warrant, which permits search of a stopped

vehicle on a showing of probable cause; 7
and a search of a vehicle incident to a lawful

arrest. IV R. 32-35. On appeal, Humphrey challenges both grounds relied on to

justify the search. Because we hold that the search of the vehicle was proper as a

search incident to a lawful arrest, see United States v. Lacey , 86 F.3d 956, 971 (10th

Cir. 1996), we do not consider the probable cause argument.

Under New York v. Belton , 453 U.S. 454, 460-61 & n.4 (1981), officers may

search any containers, open or closed, in the passenger compartment of a vehicle

incident to a lawful arrest of an occupant of the vehicle. Nevertheless, Defendant

Humphrey argues that this rule has now been modified by Knowles v. Iowa , 525 U.S.

113 (1998). Brief of Defendant Humphrey at 17-20. Defendant’s reading of that case

is mistaken, however. The Court in Knowles instead held that the Fourth Amendment

does not permit a search incident to citation, while leaving the rule of Belton intact.

Id. at 118.

Defendant argues that neither of the concerns underlying the rule of Belton ,

officer safety and preservation of evidence, was present in this case. The former was

not implicated once he had been taken into custody without resistance, handcuffed,

7
See, e.g., Anderson , 114 F.3d at 1065.

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and placed in the squad car, he contends. He also asserts that because the outstanding

warrant was for driving under suspension, there was no likelihood that evidence

relevant to that offense would be found in the vehicle. He notes that the Court in

Knowles based its holding in part on the somewhat reduced concern for officer safety

in the context of an ordinary traffic stop and the absence of the concern for

preservation of evidence of the traffic violation there. We disagree because Belton

emphasized that its holding created a “bright line” rule, intended to provide specific

and coherent guidance to officers in the field. Therefore, this search is valid under

Belton without regard to the fact that the search occurred after Defendant had been

restrained, see United States v. Lacey , 86 F.3d at 970-71, and without regard to the

nature of the offense for which he was arrested, see United States v. McKinnell , 888

F.2d 669, 672-73 (10th Cir. 1989). 8

We cannot agree that Knowles has abrogated Belton . We think the Court made

it clear that it harbored no such intention. Knowles , 525 U.S. at 118 (citing Belton

with approval); see also United States v. McLaughlin , 170 F.3d 889, 894 (9th Cir.

1999). Accordingly, there was no error in denying the motion to suppress evidence

8
As one circuit judge has lucidly and emphatically demonstrated, cases like the
instant case (when we focus only on the search incident to arrest rationale and not the
probable cause justification for this search) demonstrate that the legacy of Belton is that
“the rationales behind the search incident to arrest exception have been abandoned, the
purpose has been lost,” and as other cases have shown, even the supposed clarity of the
bright line rule has proved illusory as “little certainty remains.” United States v.
McLaughlin , 170 F.3d 889, 894 (9th Cir. 1999) (Trott, J., concurring). See also 3
Wayne R. LaFave, Search and Seizure § 7.1(c) (3d ed. 1996).

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seized from Defendant Humphrey’s pickup truck.

B

Both Defendants challenge the admission of evidence from the “second purse,”

as we label it for convenience. The primary contents of the second purse, at least the

pages in the record on appeal, were a few pages of handwritten notes. In addition,

the second purse contained a money order receipt which was admitted at trial as

Government Exhibit 901. The government does not argue on appeal that any

reasonable expectation of privacy in the second purse was destroyed by Regan’s

decision to leave it at Patty’s house; we therefore presume that Regan did have a

reasonable expectation of privacy.

The attack on this evidence has three prongs. First, Defendant Regan argues

that Patty Bauerlein was acting as a government agent when she examined the

contents of the second purse before turning it over to Officer Davis. 9
Second, Regan

contends that, if Patty Bauerlein did not examine the contents of the second purse,

then the later, warrantless search by the police violated her Fourth and Fourteenth

Amendment rights by exceeding the scope of the “private search” by Patty. Third,

both Defendants attack the evidence on the basis of lack of foundation; in connection

with that argument, both Defendants assert that this evidence was inherently

unreliable due to the failure to maintain a proper chain of custody.

As discussed infra , there is a disparity in the evidence as to whether Patty
9

Bauerlein did inspect the contents of the second purse.

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 1

We begin with Defendant Regan’s argument that Patty Bauerlein was acting as

an agent for law enforcement authorities when she examined the contents of the

second purse. The first two parts of this attack on the evidence found in the second

purse are presented in the alternative. Regan argues that if Patty first examined the

contents of the purse before giving it to Officer Davis, she did so as a de facto agent

for the government. Alternatively, she argues that if Patty turned the purse over to

the authorities without examining its contents, then the search by the police without

a warrant was improper under the Fourth Amendment because no exigency for

proceeding without a warrant was shown and the search by the police would have

exceeded the scope of any “private search” by Patty.

It is clear that the Fourth Amendment does not apply to searches by private

parties, absent governmental involvement. See United States v. Smythe , 84 F.3d 1240,

1242 (10th Cir. 1996). There we explained that

in some cases a search by a private citizen may be transformed into a
governmental search implicating the Fourth Amendment “if the
government coerces, dominates or directs the actions of a private
person” conducting the search or seizure. Pleasant v. Lovell , 876 F.2d
787, 796 (10th Cir. 1989). In such a case, the private citizen may be
regarded as an agent or instrumentality of the police[,] and the fruits of
the search may be suppressed.

84 F.3d at 1242. Although the ultimate question of constitutional law is one we

review de novo , the district court’s determination whether the private citizen was

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acting as an agent for the government is a factual finding to be reviewed only for

clear error. See United States v. Leffall , 82 F.3d 343, 347 (10th Cir. 1996). The

district judge determined that Patty Bauerlein was not acting as a government agent.

IV R. 32 (“The suggestion that this individual became an agent of the police is not

supported by the evidence presented to the Court.”). We find no error in this ruling

and so must reject this argument.

Regan essentially resorts to asking us to draw an inference of Patty’s working

as a government agent from the evidence of the working relationship between Patty

and Officer Davis in the time leading up to the arrests. The district court did not

draw that inference, and we cannot say that this was error.

2

Ms. Regan argues in the alternative that if Patty had not examined the contents

of the purse prior to giving it to Officer Davis, then the later warrantless search of the

contents by the police violated her Fourth Amendment rights. See United States v.

Jacobsen , 466 U.S. 109, 115-16 (1984) (legality of warrantless police search

following private search is determined by the scope of the initial private search);

United States v. Donnes , 947 F.2d 1430, 1435 (10th Cir. 1986) (holding that police

violated defendant’s Fourth Amendment rights by opening camera lens case which

private citizen had found in defendant’s residence).

We agree with the government that this issue was not raised in the district court

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and that our review is accordingly limited. Both in his affidavit and in his testimony

at the reconvened hearing on the motion to suppress, Officer Davis indicated that, at

the time he received the purse from Patty, she told him that the papers in the purse

might prove to be important evidence. Based on Davis’s statements, Defendant

Regan relied at the suppression hearing on the belief that Patty had examined the

contents of the purse before turning it over to Davis, and argued for suppression on

the basis (which we have considered supra ) that Patty was acting as a government

agent. At trial, however, Patty testified that she had not examined the contents of the

purse. IX R. 709.

In United States v. Parra , 2 F.3d 1058 (10th Cir. 1993), we held that “unless

a party asks the district court to reconsider its decision at trial, . . . we will not

consider trial evidence which undermines a district court decision rendered at a

pretrial suppression hearing.” 2 F.3d at 1065. Regan asserts that this rule is

inapplicable here because she did renew her motion to suppress at trial. We find this

unavailing, however, because Regan never argued to the district court that the police

search exceeded the scope of the private search (if any). Thus, although Parra read

literally requires only that the motion to suppress be renewed, we think it beyond

argument that where, as here, the trial testimony arguably supports suppression of the

evidence on a legal basis different from that argued in the motion to suppress , the

defendant must object at trial and inform the trial court of the new legal basis for

-22-
excluding the evidence .

This corollary to Parra is but a specific application of the general rule that an

issue must be presented to the district court to be properly preserved for appeal and

is, of course, necessary to implement the underlying rationale of that case, that “the

district court should have the first opportunity to correct its mistake.” 2 F.3d at 1065.

Here there was no mistake by the district court. Its ruling at the suppression hearing

that Patty was not acting as a government agent was, as we have discussed, not error.

Patty’s testimony at trial that she had not opened the purse provided the basis for a

potential argument, advanced here, that the police should have obtained a warrant

before their examination of the contents, but that argument was not made below. The

district judge did not err in failing to consider this issue sua sponte . 10

3

Both Defendants contend that the district court abused its discretion in

admitting the documents from the second purse because the sole evidence to identify

the handwriting on the exhibits was questionable testimony of Patty Bauerlein. 11

10
As we noted in Parra , we will review the admission of evidence for plain error:
“Of course, if the trial evidence is of such a nature that the district court should have
immediately realized that its earlier ruling was in error, we may consider the evidence
because the district court’s failure to act sua sponte would then be plain error.” 2 F.3d
at 1065. We do not find the evidence here to be of such a character and hold there was
no plain error.

Defendants acknowledge that lay witnesses may be competent to testify as to
11

the source of handwriting “based on familiarity not acquired for purposes of the
(continued...)

-23-
Patty testified that she was familiar with Defendant Regan’s handwriting, adding that

Regan kept notes “about everything and everybody.” IX R. 710, 714. She also

testified that she was familiar with Defendant Humphrey’s signature, which she

identified on one exhibit, a money order receipt. Id. at 713. Although it is true that

there was almost no elaboration on the opportunities that Patty had to observe the

Defendants’ handwriting, especially as to Humphrey, we do not believe that the

district judge abused his discretion in admitting the evidence based on this

foundation.

Defendants also assert that the documents from the second purse should not

have been admitted because of the officers’ failure to maintain a proper chain of

custody. As noted, rather than transferring the purse to a secured evidence room,

Officer Davis kept the purse unsecured in his office for several weeks without

examining the contents. We conclude, however, that the district judge properly

decided that the irregularities in the handling of this evidence did not preclude its

admission but could be considered by the jury in its determination of the weight to be

given to the evidence.

As the government points out, these documents were unlike fungible evidence,

such as drugs or cash, where absent a reliable chain of custody there would be a

relatively high risk that the original item had been contaminated or tampered with.

11
(...continued)
litigation.” Fed. R. Evid. 901(b)(2).

-24-
If a proffered exhibit “is unique, readily identifiable and relatively resistant to

change, the foundation need only consist of testimony that the evidence is what its

proponent claims.” United States v. Cardenas , 864 F.2d 1528, 1531 (10th Cir. 1989);

see also Reed v. United States , 377 F.2d 891, 893 (10th Cir. 1967). The exhibits at

issue here are unique and relatively resistant to change.

Because it is not clear that anyone had looked at these documents before they

spent weeks in Officer Davis’s desk, we cannot say that the documents were readily

identifiable, but we think the trial judge did not abuse his discretion in determining,

based on Davis’s testimony, that the evidence was “what its proponent claims.”

Cardenas , 864 F.2d at 1531. The chain of custody need not be perfect. United States

v. Johnson , 977 F.2d 1360, 1367 (10th Cir. 1992). Where the chain of custody is

imperfect, “deficiencies in the chain of custody go to the weight of the evidence, not

its admissibility; once admitted, the jury evaluates the defects and, based on its

evaluation, may accept or disregard the evidence.” Cardenas , 864 F.2d at 1531.

Defendant Humphrey also argues that it was error to admit these documents

against him, 12
claiming that Patty Bauerlein was an uncharged accomplice and her

testimony providing the foundation for admission of these documents was therefore

presumptively unreliable. Humphrey analogizes to the rule that out of court

12
In addition to the documents found in the second purse, this argument is
directed to a document, identified as a “drug ledger,” which was found in the search of
the Dodge that was parked in Patty’s garage.

-25-
confessions of accomplices or co-conspirators are presumptively unreliable because

they “‘may well be the product of the co-defendant’s desire to shift or spread blame,

curry favor, avenge himself, or divert attention to another.’” Crespin v. New Mexico ,

144 F.3d 641, 646 (10th Cir. 1998) (quoting Lee v. Illinois , 476 U.S. 530, 545

(1986)). This rule, however, is rooted in the Confrontation Clause of the Sixth

Amendment and applies where the co-defendant does not testify at trial. Here, Patty

did testify at trial and was subject to cross-examination.

We do not understand Humphrey to direct this argument to the underlying

statements of Regan contained in the documents. If that is intended, we are still

unconvinced. The statements made by Regan in the documents, unlike the

confessions referred to in Crespin , were not made while in custody or under

investigation. Therefore, the danger that Regan was trying to shift the blame from

herself, see Crespin , 144 F.3d at 646, when she made the notes is simply not

substantial, and the principle invoked by Humphrey is inapplicable.

IV

Regan contends that the district court made two errors in charging the jury –

failing to instruct on her theory of defense and failing to instruct on the lesser

included offense of simple possession.

A

Regan’s theory of defense, as suggested by counsel in closing statement,

-26-
essentially is that Patty Bauerlein was not merely a user of methamphetamine but an

addict; that Patty was motivated by her need for money to support her habit which

overwhelmed all other considerations; that Judith Bauerlein was entitled to Social

Security survival benefits; and that Patty therefore wanted to displace Regan as

Judith’s guardian to obtain control over those funds.

Regan submitted three instructions on the Wyoming law of intestate succession

and the right of a surviving spouse to an elective share of the decedent’s estate in lieu

of taking under the decedent’s will. The proposed instructions quoted Wyoming

Statutes §§ 2-5-101(a), 2-5-103 and 2-4-101(a). Our standard of review is de novo

to determine “whether the instructions as a whole adequately apprised the jury of the

issues and the governing law.” United States v. Wolny , 133 F.3d 758, 765 (10th Cir.

1998). Although it is reversible error not to instruct the jury on a theory of defense

that is supported by the evidence, such an instruction “is not required if it would

simply give the jury a clearer understanding of the issues.” Id.

We hold that the district court did not err in refusing to give the proffered

instructions. First, we think it clear that the instructions as given adequately stated

the applicable law and gave the jury a clear understanding of the issues. The jurors

were specifically instructed that Patty Bauerlein was an informant whose testimony

“must be examined and weighed by the jury with greater care than the testimony of

a witness who is not so motivated.” Instruction 14, II R. doc. 126. The instruction

-27-
went on to say that the jury “must determine whether the informant’s testimony has

been affected by self-interest . . . or by prejudice against the defendants.” Id.

This instruction adequately framed the issues and provided the necessary basis

for consideration of Regan’s defense. From our review of counsel’s closing

argument, we are confident that there was no inhibition affecting presentation of the

defense, which was argued by counsel for Humphrey as well as by Regan’s attorney.

See, e.g. , XI R. at 1029, 1040. The proffered instructions, on the other hand, might

not have been comprehensible to the jurors. As the government points out, the

statutes quoted in Regan’s requested instructions include terms such as “elective

share,” “homestead allowance,” “enforceable claims,” “exempt property,” “family

allowances,” “parcenary,” and “intestate.” We do not believe that the esoteric

instructions would have been helpful, much less that they were necessary for the

jurors to understand the Defendant Regan’s theory.

B

Regan also claims error in the district judge’s decision not to instruct the jury

on the lesser included offense of simple possession of methamphetamine. Regan

argues that the jurors could have found her guilty of possessing only the small amount

of methamphetamine which was found in her purse when she was arrested, while

finding her not guilty of Count Two, possession with intent to distribute, which was

based on the much larger amounts of methamphetamine recovered from the satchel

-28-
found in the floor of the pickup at the time of Defendants’ arrests. 13

We apply a four part test to determine when a lesser included offense

instruction should be given. First, the defendant must properly request the

instruction; second, the elements of the lesser included offense must be a subset of

the elements of the charged offense; third, the element required for the greater,

charged offense that is not an element of the lesser offense must be in dispute; and

fourth, the evidence must be such that the jury could rationally acquit the defendant

on the greater offense and convict on the lesser offense. See United States v. Duran ,

127 F.3d 911, 914-15 (10th Cir. 1997). We review de novo whether the “offense for

which an instruction is sought actually qualifies as a lesser included offense of the

offense charged,” but we have said that the district court’s decision “as to whether

there is enough evidence to justify a lesser included offense instruction [is reviewed]

for an abuse of discretion.” Id. at 914. This however, is no broad ranging discretion

but is focused narrowly on whether there is any evidence fairly tending to bear on the

lesser included offense. In Duran , we continued our analysis by recognizing that:

“The Supreme Court has held a defendant is entitled to an instruction concerning a

lesser crime , pursuant to Fed. R. Crim. P. 31 (c), if the evidence justifies that

instruction.” Id. (emphasis added).

13
Regan did not request a lesser included offense instruction with respect to the
conspiracy count. Possession is not a lesser included offense of conspiracy to possess
with intent to distribute. See United States v. Lacey , 86 F.3d 956, 969 n.11 (10th Cir.
1996).

-29-
 In United States v. Pino, 606 F.2d 908 (10th Cir. 1979), we explained the

operation of Rule 31(c) and its provision that a defendant “may be found guilty of any

offense necessarily included in the offense charged,” or of an attempt to commit that

offense if the attempt is an offense. We held that

[a]lthough the language is in discretionary terms, it is “mandatory in the
sense that if there is evidence to support a lesser included offense and
defendant requests such a charge, the court has no discretion to refuse
to give the instruction.” 8A Moore’s Federal Practice, par. 31.03.

606 F.2d at 914 (emphasis added). The Supreme Court has noted that

[i]n the federal courts it has long been “beyond dispute that the
defendant is entitled to an instruction on a lesser included offense if the
evidence would permit a jury rationally to find him guilty of the lesser
offense and acquit him of the greater.”

Beck v. Alabama , 447 U. S. 625, 635 (1980) (emphasis added)(quoting Keeble v.

United States , 412 U.S. 205, 208 (1973)). The Court also noted agreement in all of

the States with this principle. Beck, 447 U.S. at 635-36 & nn.11 & 12. This

principle was recognized over a century ago in Stevenson v. United States , 162 U. S.

313 (1896):

A judge may be entirely satisfied from the whole evidence in the
case that the person doing the crime was actuated by malice; that he was
not in any such passion as to lower the grade of the crime from murder
to manslaughter by reason of any absence of malice; and yet if there be
any evidence fairly tending to bear upon the issue of manslaughter, it
is the province of the jury to determine from all the evidence what the
condition of mind was, and to say whether the crime was murder or
manslaughter.

162 U.S. at 323 (emphasis added).

-30-
 We are convinced that refusal to give the requested instruction of Defendant

Regan here on simple possession was a legal error and an abuse of discretion under

this principle. The government argues that the amount of methamphetamine found

in the satchel is such that the jury could not have acquitted her on the charge of

possession with intent to distribute. However, we note that as to the satchel, which

was Government’s Exhibit 1 at trial, the evidence was that Humphrey had been seen

carrying a satchel of similar appearance on the morning of his arrest. VIII R. 333-38;

366-69. Moreover, Patty Bauerlein testified that Humphrey habitually carried a

satchel which he called his “dope bag,” although she believed that the one she had

seen was not the same one as Exhibit 1. IX R. 647-48. Judith Bauerlein testified that

Humphrey borrowed her scales three or four times to weigh one pound quantities of

methamphetamine and that after weighing the drug and dividing it into smaller

quantities, he would put all the bags into a tan bag like Exhibit 1. Id. 577-81. Thus,

the evidence tied the satchel much more closely to Humphrey than to Regan.

The trial judge relied on testimony that Regan was seen moving something on

the floorboard of the pickup as Humphrey was slowing the pickup to a stop in

response to the officers’ signals, drawing the inference that Regan was moving the

tan satchel. Although this inference, and the further inference that such an act would

indicate guilty knowledge as to the contents of the satchel were perhaps permissible,

we cannot agree that the jury could only have drawn such inferences, especially in

-31-
light of testimony that other objects were in the floorboard of the pickup at the time.

Our question is not whether the evidence pointing to the lesser offense of

simple possession was weak. “Under settled principles . . . a defendant is entitled to

an instruction on a lesser included offense if there is any evidence fairly tending to

bear upon the lesser included offense, ‘however weak’ that evidence may be.” United

States v. Thornton , 746 F.2d 39, 47 (D.C. Cir. 1984)(emphasis added). Nor is it

controlling that the jury might have had to credit part of Judith Bauerlein’s testimony

and discredit much of it in order to reach that result since

the court may not intrude on the province of the jury which may find
credibility in testimony that the judge may consider completely
overborne by the simply overwhelming evidence of the prosecutor. And
there may be some evidence of a lesser offense even though this depends
on an inference of a state of facts that is ascertained by believing
defendant as to part of his testimony and prosecution witnesses on the
other points in dispute.

Belton v. United States , 382 F.2d 150, 155 (D.C. Cir. 1967) (citations and internal

quotation marks omitted)(emphasis added).

Regan points out that the jury could have decided to hold her responsible

merely for a possession violation in view of the small amount of methamphetamine

found in her purse, 3.81 grams, when she was arrested. IX R. 546-47. And we note

particularly that one of the officers testifying for the government, the Supervisor of

the street drug unit of Casper, Officer Clapp, testified that this quantity of

methamphetamine found in Defendant Regan’s purse was “indicative of somebody

-32-
who is a user . . . along with the other items found in the purse . . . .” Id. at 550. See

also IX R. 546-47, 549 (emphasis added). There was also other evidence that Regan

was using methamphetamine. Id. at 571-72, 576. See generally U. S. v. Moore , 108

F.3d 270, 273 n.2 (10th Cir. 1997)(collecting cases reversing drug convictions for

failure to give instructions on lesser included offenses of simple possession).

Moreover, the evidence in the case implicated Humphrey more strongly than

Regan. 14 While the jury might have found that Regan possessed the drug in the

satchel, our inquiry, as we are instructed by the Supreme Court in Stevenson v.

United States , 162 U. S. at 323, in Beck , 447 U. S. at 635, and in Keeble , 412 U. S.

at 208, is whether “the evidence would permit a jury rationally to find [her] guilty

of the lesser offense and acquit [her] of the greater... ” Beck , 447 U.S. at 635

(emphasis added). Here we are convinced the evidence was such that the submission

of the lesser-included-offense charge was decided erroneously.

On this record, and in light of the teachings of the Supreme Court on the

Defendant’s right in such a jury trial to such a charge where there is “any evidence”

to support submission of the lesser-included-offense instruction, the rejection of the

charge was error, requiring that Regan’s conviction on Count II be reversed.

V

Both Defendants challenge two of the decisions made by the district court in

14
Some of this evidence is discussed in parts V-A and V-C, infra .

-33-
the application of the Sentencing Guidelines. Both Defendants contend that the

district judge erred in calculating the amount of methamphetamine for which the

Defendants should be held responsible and by increasing their offense levels for the

use of a firearm in connection with the offenses. Additionally, Humphrey alleges that

the court erred in increasing his offense level for the use or involvement of a minor

in the offenses.

A

Both Defendants challenge the calculation of the amount of methamphetamine

attributed to them for sentencing purposes. The government contended at the

sentencing hearings that the amount of methamphetamine to be attributed to the

Defendants could be conservatively estimated at 7.5 kg. The government must prove

drug quantities at sentencing by a preponderance of the evidence. The Defendants’

challenges to these calculations raise issues of fact; we review the district court’s

factual findings only for clear error. E.g., United States v. Clark , 57 F.3d 973, 977

(10th Cir. 1995).

At the sentencing hearings, the government offered the testimony of Officer

Wenberg, who gave virtually identical testimony in each case as to the calculation of

the quantity of methamphetamine which could be attributed to the Defendants. Some

of Wenberg’s testimony was based on his own study of the drug ledgers discussed

supra , some was based on trial testimony of other witnesses, and some was based on

-34-
information disclosed during the investigation of the case, especially interviews by

the prosecuting attorney with Patty Bauerlein in which Officer Wenberg had

participated.

First, the government relied on the trial evidence that approximately 665 grams

of methamphetamine were found in the tan satchel at the time of the Defendants’

arrest, along with 85.59 grams of amphetamine. Under the drug equivalency tables

in the Guidelines, this was the equivalent of 663 grams of methamphetamine.

Defendants do not challenge the inclusion of the quantity in the calculation of the

total amount attributed to them.

Second, Officer Wenberg testified, based on his experience in investigations

of drug trafficking, that the drug ledgers found in the pickup at the time of

Defendants’ arrest showed a quantity of 2014 grams. Defendants challenge this

evidence on several grounds, but as explained below, we do not find it necessary to

consider these issues. Third, Officer Wenberg testified that he included in his total

estimate three pounds of methamphetamine, or 1356 grams, based on Judith

Bauerlein’s testimony at trial that Humphrey had borrowed her scales on three or four

occasions to weigh one pound quantities. Defendants do not object to this portion of

the total calculation.

Fourth, Officer Wenberg testified that his estimate included one pound, or 452

grams, based on Patty Bauerlein’s testimony that she witnessed a transaction in a local

-35-
motel in June 1997. Defendants do not object to this quantity being included in the

total estimate. Fifth, Officer Wenberg included six pounds, or 2,712 grams, based on

information Patty had provided in the investigation phase concerning a transaction on

July 4, 1997. Defendants challenge the inclusion of this amount, as discussed below.

Sixth, the total estimate included three ounces of methamphetamine, based on

three occasions when Defendants sent $1,000 (each time) by wire transfer for the

purchase of methamphetamine. Defendants do not challenge this part of the

government’s estimate. Finally, Officer Wenberg’s estimate included 226 grams of

methamphetamine, based on the almost $8,000 in cash found on Humphrey at the time

of his arrest and in the search of the Dodge automobile in the garage at Patty’s

residence, as described above. Defendants do not challenge inclusion of this amount.

The government notes that the applicable Guidelines provision sets an offense

level of 34 for any quantity of methamphetamine between three and ten kilograms.

See USSG § 2D1.1(c) (1995). 15
Therefore, the government urges and we agree, any

error in the estimate by Officer Wenberg must be harmless unless Defendants

successfully challenge enough of the evidence to reduce the total to less than three

kilograms. The quantities we have set out above which are not challenged on appeal

total 2,773.75 grams. Therefore, to show prejudicial error Defendants would have to

15
We note that the district court used the 1995 version of the Sentencing
Guidelines because the crimes of conviction were committed before the effective date of
the 1997 Guidelines, which increased the penalties for crimes involving
methamphetamine by adjusting the drug quantity table in USSG § 2D1.1(c).

-36-
convince us that the district judge erred in attributing more than 226.25 grams in total

to them on the basis of the challenged evidence. We find that Defendants’ effort must

fail.

We find it necessary only to address one contested point in order to resolve

Defendants’ challenge. As noted, Officer Wenberg included six pounds based on a

transaction which occurred on July 4, 1997. The government candidly admits that the

source of the six pound estimate is uncertain. Officer Wenberg testified that he

believed that Patty Bauerlein had given this information during the investigation. At

trial, however, Patty had testified that she could not recall the amount involved in that

particular transaction, but that she did recall that on or near that date a large group

of people came to the house on Jefferson Street and went into the bedroom that had

been Mr. Bauerlein’s. IX R. 677-81. She went into the room after the others had left

and saw foil wrapped packages, one of which was opened and appeared to be

methamphetamine. She also said that Humphrey told her that it was “crank,” a slang

term for methamphetamine, and “[t]hat it was a lot in terms of pounds.” Id. at 680.

Assuming arguendo that this testimony was insufficient to prove by a

preponderance of the evidence that the transaction involved six pounds of

methamphetamine, we must agree with the government that any error would be

harmless because the evidence was clearly sufficient to support an estimate of at least

one pound. Given the amount of the drug attributed to Defendants that they have not

-37-
challenged, as set out above, we must conclude that any errors in the drug quantity

calculation were harmless, as in any event the unchallenged evidence, plus one pound

attributed to the July 4, 1997, transaction, is sufficient to establish the threshold

quantity of three kilograms on which Defendants’ offense levels were based.

B

Both Defendants challenge the enhancement of their offense levels under

USSG § 2D1.1(b)(1) for possession of a dangerous weapon. 16
“The adjustment should

be applied if the weapon was present, unless it is clearly improbable that the weapon

was connected with the offense.” USSG § 2D1.1, comment. (n.3). The initial burden

is on the government to prove possession of the weapon by a preponderance of the

evidence, which may be satisfied by showing “mere proximity to the offense.” United

States v. Smith , 131 F.3d 1392, 1400 (10th Cir. 1997). After the government has met

this burden, a defendant can still avoid the enhancement if he can prove that it is

clearly improbable that the weapon was connected to the offense. Id. Because Regan

has been convicted of conspiracy, the straightforward application of the Guidelines

provision authorizes the increase in offense level even if the gun was actually

possessed only by Humphrey; in a drug conspiracy conviction the adjustment should

be applied unless it is clearly improbable that the weapon was connected with the

conspiracy offense. United States v. Goddard , 929 F.2d 546, 548 (10th Cir. 1991).

16
Subsection (b)(1) of USSG § 2D1.1 provides: “If a dangerous weapon
(including a firearm) was possessed, increase by 2 levels.”

-38-
 This enhancement was based on the pistol which was found in the trunk of the

Dodge automobile parked in the garage at Patty Bauerlein’s residence when the search

warrant was executed hours after Defendants’ arrest. Patty Bauerlein had testified

that the Defendants had been gone for several days, having asked her to watch the

house on Jefferson Street while they went out of town to buy drugs. Patty testified

that they returned on September 5, 1997, arriving at her residence in the Dodge. The

prosecution had already shown that the Dodge was registered to Humphrey. Patty

testified that on arriving at her home, the Defendants took some things out of the

Dodge, including some methamphetamine. Later, Defendants took the

methamphetamine with them when they left with Patty in the Dodge, eventually

returning to Patty’s house with the Dodge, which was parked in the garage, and

Humphrey’s pickup. IX R. 684-95. These were the events relevant to the Dodge

occurring just before the Defendants’ arrest and the subsequent search of the vehicle.

In sentencing Regan, the district court found that:

[I]t stretches credulity . . . to think that this defendant did not know that
a loaded gun was available for the purposes of protecting the integrity
of their drug purchases and sales. . . . .
And the evidence is clear that this defendant had a longstanding
relationship with the co-defendant. It is clearly foreseeable to the
defendant . . . that he possessed a firearm in relation to the distribution
of controlled substances.

XVIII R. 61.

At Humphrey’s sentencing, which followed immediately after Regan’s, the

-39-
judge referenced that finding and added that the gun “was available for the

continuation of the drug trafficking offenses. It was present during portions of the

conspiracy certainly. It is not clearly improbable that the gun was . . . connected to

the conspiracy, and to the contrary it was connected to the conspiracy, and the

enhancement is entirely appropriate.” XVII R. 34-35.

Humphrey’s argument emphasizes the requirement of physical proximity and

the fact that his arrest occurred miles away from Patty’s garage, where the loaded

pistol was found in the trunk of the Dodge. This argument is without merit. The trial

court properly found that the gun was connected to the conspiracy. Although no

drugs were found in the trunk of the Dodge, other items connected with the

conspiracy were, including the drug ledgers discussed above. Clearly, Patty

Bauerlein’s testimony, which the trial judge accepted, tied the Dodge to a drug buying

trip which was completed only one day before the gun was found in the car’s trunk.

We cannot say that the district judge’s findings were clearly erroneous. The

government’s evidence was sufficient to meet its burden, and Humphrey introduced

no evidence to show that it was improbable that the gun was connected to the

conspiracy.

Regan’s argument emphasizes the lack of a direct connection between her and

the weapon. She contends that in the absence of evidence that she had actual

knowledge of the gun, the enhancement could not be properly applied to her. We

-40-
disagree. The issue is whether Humphrey’s possession of the weapon in connection

with the conspiracy was reasonably foreseeable to Regan. Regan contends that this

case is similar to United States v. Cochran , 14 F.3d 1128, 1131-33 (6th Cir. 1994),

in which the application of the dangerous weapon increase was reversed on appeal.

The case is not helpful to Regan, however. In that case, the defendant Cochran had

accompanied his cousin on a trip to buy drugs. When they were arrested on their

return journey, a gun was found under the car seat where the other defendant had been

sitting. The defendant testified at sentencing that although he knew the purpose of

the trip and had purchased methamphetamine from his cousin on a regular basis, he

knew nothing about the gun and did not believe that his cousin would carry a gun in

connection with his drug trafficking because he was such a small time dealer. He also

testified that he knew his cousin sometimes carried up to $1,000 when buying drugs.

Here the relationship between these Defendants was much closer than that

between Mr. Cochran and his cousin. Accordingly, we do not find that the district

judge here committed clear error in finding that Humphrey’s possession of the

weapon in connection with the trafficking activities was reasonably foreseeable to

Regan. The district court did not err in adjusting the offense levels of both

Defendants under USSG § 2D1.1(b)(1).

C

Finally, we consider Defendant Humphrey’s contention that the district judge

-41-
improperly increased his offense level for the use of a minor, Judith Bauerlein, to

commit the offenses. The applicable Guidelines provision states: “If the defendant

used or attempted to use a person less than eighteen years of age to commit the

offense or assist in avoiding detection of, or apprehension for, the offense, increase

[the offense level] by 2 levels.” USSG §3B1.4 (1995). A defendant may be found

to have used or have attempted to use a minor within the meaning of this provision

by “directing, commanding, encouraging, intimidating, counseling, training,

processing, recruiting, or soliciting.” Id., comment. (n.1). And, of course, we are

confined to considering conduct of “directing, commanding, encouraging,” etc., “to

commit the offense,” and this means Humphrey’s offenses he was convicted of, his

conspiracy to possess methamphetamines with intent to distribute and his possession

with intent to distribute, not Judith’s acts in her own distribution conduct that was

proven.

The district court made the following findings in rejecting Humphrey’s

challenge to this enhancement:

[T]he evidence is clear to the Court that this defendant and his co-
conspirator used or attempted to use a person of less than 18 years of age
either to commit an offense or assist in avoiding its detection. It’s
reprehensible that a 14-year-old girl was used at least in some of the
sales of methamphetamine in this case. . . . . Living with two adults
who made methamphetamine available to her – and her testimony is
believable, and I think it is – in turn she made drugs available to other
children in this city. This adjustment for role in the offense is clearly
appropriate.

-42-
XVII R. 35-36. As with other Guidelines issues, we will review the district court’s

findings of fact only for clear error, giving due deference to the district court’s

application of the Guidelines to the facts. See, e.g., United States v. Smith , 131 F.3d

1392, 1399 (10th Cir. 1997).

Our review of the record reveals no basis for the findings that Judith Bauerlein

“was used at least in some of the sales” and distributed to other juveniles drugs

provided by Defendants, and the government makes little attempt to defend the

enhancement on this basis. Instead, the evidence was that Judith, who was using

methamphetamine very heavily from the spring of 1997 until her arrest in mid-

August of that year, had her own illegal methamphetamine business which was

substantially, if not totally, independent of the trafficking activities of the Defendants.

According to Judith’s testimony, which was not contradicted by any other

witness, she sold only methamphetamine that she obtained from other sources, mostly

other juveniles, IX R. 570-71; there is no indication that those juveniles were also

customers of the Defendants. Judith testified that she was selling methamphetamine

in ounce quantities and would have several thousand dollars worth of

methamphetamine on hand at times, a fact she did not disclose to Defendants. Id. at

604. She also had thousands of dollars in cash on hand at times, unknown to

Defendants. Id. at 607. She was able to keep her business to herself because she

lived in the basement of the house on Jefferson Street and didn’t allow the others in

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her room. Defendant Humphrey was unable to stop her from carrying on her

activities. Id. As to Defendants’ activities, Judith denied ever witnessing any drug

sales. Id. at 583.

It is true, however, that Defendant Humphrey engaged in methamphetamine use

with Judith. IX R. 581-83. Judith testified that she sometimes shared the drug with

the Defendants. As she described it, this would occur if she had methamphetamine

but the Defendants did not, or the other way round. Whoever had some would share

with the others, but Judith said that other than on these occasions when she was using

methamphetamine with the Defendants, she did not obtain any of her

methamphetamine from the Defendants.

Without confronting this evidence that Judith ran her own methamphetamine

enterprise from the basement of the house, and that the Defendants’ trafficking had

no direct connection to Judith, the government defends the offense level increase by

pointing to the evidence of Humphrey’s use of methamphetamine with Judith and her

testimony that he borrowed her scales on at least three occasions to weigh his

methamphetamine, apparently in preparation for his sales of the substance. This proof

is insufficient to support a finding that Humphrey used Judith in connection with his

drug trafficking activities. The few instances of shared drug use described in Judith’s

testimony were not shown to have any relation to the large volume drug business that

Humphrey was engaged in. To the contrary, Judith’s testimony provided no basis for

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finding that Humphrey involved her in his activities, except for borrowing her scales.

This is not sufficient to constitute “use” of a minor. 17
There is no evidence of

Humphrey “directing, commanding, encouraging, intimidating, counseling, training,

processing, recruiting, or soliciting” Judith for the crimes of which Humphrey himself

was convicted. In sum, subsequent sentencing proceedings must be in accordance

with our rulings in this opinion.

Conclusion

The cases of both Defendants are remanded for further proceedings in

accordance with this opinion.

17
We do not hold that a defendant’s act of borrowing a minor’s scales or other
drug-related paraphernalia can never support application of the “use of a minor”
enhancement. For example, if a defendant specifically requests a minor’s permission to
use scales for weighing drugs, such a request may constitute “soliciting” a minor to
commit the offense. We need not decide whether that situation would justify the
enhancement, however, because in this case there was no evidence indicating that
Humphrey asked Judith’s permission to borrow the scales. She merely testified that
Humphrey did use her scales in her presence.

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99-8001, 99-8002, United States v. Humphrey and Regan

MURPHY, Circuit Judge, dissenting.

I dissent from the majority’s conclusion that the district court failed to

adequately investigate the possibility of juror impropriety. The majority properly

employs an abuse of discretion standard in reviewing the district court’s decision to

circumscribe its investigation in the manner it did. See Majority Op. at 10; United

States v. Davis , 60 F.3d 1479, 1483 (10th Cir. 1995). I further agree with the

majority that when an allegation of jury taint arises, the district court is obligated to

“‘investigate sufficiently to assure itself that constitutional rights of the criminal

defendant have not been violated.’” Majority Op. at 10 (quoting United States v.

Rigsby , 45 F.3d 120, 125 (6th Cir. 1995)). I diverge from the majority, however, in

its determination that the district court in this particular case abused its discretion in

ending the investigation at the conclusion of the evidentiary hearing on August 10,

1998.

The district court did not conclude its investigation of the allegation of juror

impropriety until it held two separate hearings at which it heard testimony both from

the juror who alleged the misconduct, Juror #1, and from the jury foreperson. After

those two evidentiary hearings, the district court judge made a credibility

determination that the foreperson, who denied the alleged improper comment was

made, was more believable than Juror #1. The majority concludes that the district
court erred in ending its investigation at that point, because it should have at least

examined two more witnesses–Juror #3, who may have spoken with Juror #1 about

the purported comment during a cigarette break, and Juror #2, the alleged source of

the improper comment. See Majority Op. at 13-15.

I fail to see why the district court should have considered Juror #3’s testimony

more important than that of any other juror, except the foreperson and Jurors #1 and

#2, as the majority opinion suggests. During the first evidentiary hearing, at which

all counsel had an opportunity to question her, Juror #1 never testified that she spoke

about the purported comment with Juror #3; that claim was made only in the letter

which Regan’s attorney wrote alerting the court to the possible jury taint. 1
Juror #1

merely testified that Juror #2 made two improper comments before the entire jury and

that following the second comment, the foreperson “straightened [Juror #2] right

out.” The district court, therefore, had no evidence before it indicating that an

examination of Juror #3 would be more fruitful than questioning any of the nine

remaining jurors who may have heard the comment and who were not called to

testify.

Because the only evidence before the district court was that improper

1
Despite having the opportunity to question Juror #1, neither defense counsel
asked any questions about Juror #1’s alleged conversation with Juror #3. If, as the
majority believes, that alleged conversation is important to establish the necessity of
examining Juror #3, it seems defense counsel would have examined Juror #1 concerning
the purported conversation.

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comments were uttered to the entire jury, the logical extension of the majority’s

mandate that the district court examine Juror #3 is to require trial courts to examine

all jurors whenever there is evidence of an impropriety in the presence of the entire

jury. We should refrain from imposing such a burdensome requirement on trial

courts and instead allow them to exercise discretion in determining the necessary

scope of an investigation into alleged jury taint, as the district court in this case

properly did. Furthermore, regardless of how many more jurors a district court

examines, when faced with conflicting testimony at some point it will need to make

a credibility determination to resolve whether an improper comment was in fact

made. The district court judge in the instant case, having worked closely with these

particular jurors, was in the best position to ascertain when it could confidently make

that credibility determination.

I further disagree with the majority’s conclusion that the district court erred in

failing to question Juror #2, the person who allegedly made the improper comment.

The majority states that Juror #2’s testimony is “critical” to determine whether the

defendants’ constitutional right to a fair trial was violated. Majority Op. at 13. The

majority’s assessment of the value of Juror #2’s testimony, however, overlooks the

position which the attorneys for each defendant took during the second hearing.

After the examination of the foreperson was completed, the district court solicited

comments from all the attorneys, to which the attorney for defendant Regan

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responded,

Your honor, I think that at this point certainly it’s looking more
speculative. I’d ask the Court to – to attempt to find [Juror #3]. He
seems like the other person who would either confirm or deny what
[Juror #1] said and continue it for that particular purpose only and
limited purpose only .

(emphasis added) The attorney for defendant Humphrey similarly stated, “Nothing

to add other than [Juror #3] has become important, and I guess I’d be interested to

see what he has to say, either personally or through you. But that’s all – that’s all I’d

add.” Neither attorney, therefore, even requested an examination of Juror #2, though

they had an opportunity to do so when the judge solicited their comments both before

and after ruling. 2
Because the defense attorneys themselves apparently did not deem

Juror #2’s testimony either sufficiently helpful or necessary to warrant a request for

her examination, I cannot accept the majority’s characterization of this testimony as

“critical.” For the same reasons, I cannot conclude the district court’s failure to call

Juror #2 for questioning was error.

Quite independent of the majority’s characterization of the testimony of Juror

#2, defendants’ failure to request an examination of Juror #2 constitutes a waiver of

their right to challenge on appeal the district court’s failure to call that juror for

questioning. Cf. Robinson v. Maruffi , 895 F.2d 649, 657-58 (10th Cir. 1990)

2
The majority apparently deems it important “that at the August 10, 1998
hearing, counsel for Humphrey favored calling Juror #3 for questioning.” Majority Op.
at 13 n.5. It should be equally significant that defense counsel did not similarly favor or
request calling Juror #2.

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(plaintiff could not appeal his inability to cross-examine a witness who was

temporarily dismissed during direct examination when the plaintiff failed to object

to the temporary excusal and later agreed to a permanent excusal); Fitzpatrick v.

Board of Educ. , 578 F.2d 858, 860-61 (10th Cir. 1978) (concluding plaintiffs waived

right to call certain witnesses even though they had reserved that right earlier in the

trial, because they failed to raise the issue at the end of the trial when the judge asked

if they were prepared to rest). Among the many difficult tasks of a district judge is

addressing challenges to jury verdicts. In fulfilling that obligation, a district court

should consider and be able to rely upon the suggestions of the very counsel

challenging the verdict. The majority opinion fails to attach any significance to the

role of counsel, whose views, suggestions, and advocacy, unimpeded by the rigors

of trial, did not propose what the majority now orders.

In short, given the circumstances of this particular case, the specific evidence

before the district court after two investigatory hearings, and the conduct of the

defendants’ attorneys, I disagree with the majority’s conclusion that the district court

here abused its discretion in terminating its investigation of the possible jury taint,

rather than proceeding to question more jurors.

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