United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-2230
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Brian Lee Wells, *
*
Appellant. *
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Submitted: February 17, 2011
Filed: July 26, 2011
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Before SMITH, GRUENDER, and BENTON, Circuit Judges.
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SMITH, Circuit Judge.
A jury found Brian Wells guilty of conspiring to manufacture
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 846, and 841(b)(1)(A), and
the district court1 subsequently sentenced Wells to a mandatory-minimum term of life
imprisonment. Wells appeals his conviction, contending that (1) the government
presented insufficient evidence of his entry into an actual agreement with others to
manufacture methamphetamine, (2) the district court committed plain error by
1
The Honorable John A. Jarvey, United States District Judge for the Southern
District of Iowa.
admitting certain evidence, and (3) his trial lawyer rendered ineffective assistance of
counsel. For the following reasons, we affirm.
I. Background
On September 10, 2009, a federal grand jury in the Southern District of Iowa
returned a one-count indictment charging Jeffrey Scott Wessels ("Jeff"); Jeff
Wessels's son, William Andrew Wessels ("Andy"); Stacey Lynn Shanahan, and Wells.
Specifically, the indictment charged that, "beginning on a date unknown to the Grand
Jury, but beginning no later than during or about the Fall of 2007, and continuing to
on or about March 20, 2009," Wells and his codefendants conspired "with each other
and with other persons," unnamed and uncharged, to manufacture methamphetamine,
in violation of 21 U.S.C. §§ 841(a)(1), 846, and 841(b)(1)(A).
At trial, the government presented the following evidence of methamphetamine
manufacturing at three separate properties in rural Johnson County, Iowa. On March
20, 2009, a joint unit comprised of the Johnson County Drug Task Force and the Iowa
State Patrol "tac team" executed a search warrant at 1603 Blains Cemetery Road NW,
a rural property located in Swisher, Iowa, northwest of Iowa City ("Swisher House").
Several law-enforcement officers who executed the warrant testified that, at the
Swisher House, they uncovered large amounts of "lab trash" and other evidence of
methamphetamine manufacturing such as an "off-gassing HCL generator." Indeed,
one of the executing officers testified that "[t]here was a lot of manufacturing
remnants," and opined that the Swisher House was "probably one of the largest labs
that [she had] ever been to."
Nevertheless, no physical evidence linked Wells to the Swisher House or its
resident methamphetamine operation. Law enforcement testified that, when they
arrived to execute the warrant, they found only Jeff, his son Andy, and two others in
a camper and that Wells was not on the property. Moreover, law enforcement
conceded that they found "no indicia" that Wells had ever lived at the Swisher House,
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worked there, or even frequented there, nor did they observe Wells at the Swisher
House during their surveillance of the property two days prior to the search warrant's
execution. As one official testified, "[t]hrough the course of the investigation[,] it was
determined that Jeff Wessels, Andy Wessels, Stacey Shanahan, and Troy Pritchett
were the primary [methamphetamine] cooks on that property." The only trial evidence
that placed Wells at the Swisher House was Jeff's testimony that he assisted Wells in
manufacturing methamphetamine there "probably three or four times" and that his
assistance was limited to "[j]ust providing [Wells] the location and probably g[iving]
him anhydrous [ammonia] a couple of times."
On July 21, 2009, four months after raiding the Swisher House, the same task
force conducted a consent search at 3181 Half Moon Avenue NW, in Tiffin, Iowa
("Tiffin House"). The task force received information from that property's owner that
an individual named Scotty Young ("Young") and another unidentified male were
living at the property without permission and possibly manufacturing
methamphetamine. In a metal outbuilding situated on the southwestern portion of the
Tiffin House property, law enforcement found evidence of methamphetamine
manufacturing. Specifically, officers observed ice chests and a sack containing a
hydrogen chloride gas generator that was "actively offgassing," two half-full cans of
Coleman fuel, sacks of lithium battery components, coffee filters, tubing, and a
container with blue-tinted "sludge." One task force member testified that, during the
investigation, officers "learned" that Wells was the unidentified male living with
Young and that he was in fact manufacturing methamphetamine. In addition to the
discoveries made in the outbuilding, agents discovered a plastic spoon bearing white
residue in a room that Young identified as Wells's bedroom.
The government also offered the testimony of Donovan Wyse, a "jailhouse
snitch" who was Wells's cellmate for the month immediately preceding trial.
According to Wyse, Wells admitted to cooking methamphetamine at the Swisher
House "three or four times." Additionally, Wyse testified that Wells told him about
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"a lab in Tiffin that also got raided" and how, at that lab, Young and another
unidentified individual would acquire anhydrous ammonia, "call [Wells] up and tell
[Wells] that they had it so [Wells] could cook there." Bruce Cotton, another jailhouse
snitch and former cellmate of Wells's, also testified against Wells. According to
Cotton, Wells stated that he taught Jeff and Andy how to perfect their respective
methamphetamine recipes at the Swisher House and that he also manufactured
methamphetamine with Young at an undisclosed farmhouse in Tiffin.
Despite this testimony, law enforcement conceded at trial that, much like the
Swisher House, no physical evidence linked Wells to the Tiffin House. Specifically,
Wells's fingerprints were not found on any of the methamphetamine-making
equipment and ingredients in the outbuilding. The only fingerprints recovered were
lifted off of an empty Coleman fuel can and belonged to Dawn Bean. Indeed, one of
the agents conducting the search admitted that officials found no physical evidence
that Wells was ever present in the outbuilding or even on the Tiffin House property.
Moreover, Young testified that he and Wells had only "squatted" on the property for
"probably four nights," and he conceded that, when he told law enforcement during
the search that the items in the outbuilding belonged to Wells, he really did not know
whether they belonged to Wells or a prior occupant.
Finally, the government presented extensive testimony concerning
methamphetamine manufacturing, distribution, and consumption at 1410 Hickory
Hollow ("Hickory Hollow"), as well as in the surrounding wooded area where Wells
himself allegedly cooked methamphetamine. For instance, Andy testified that he lived
at Hickory Hollow from 2005 or 2006 until the summer of 2008 and that soon after
he moved into Hickory Hollow, Wells began manufacturing methamphetamine there
once a week. Specifically, Andy and others testified that Wells used a two-stage
methamphetamine-manufacturing process. First, he conducted the more hazardous
anhydrous-ammonia phase "in the woods out in front of the house." The second stage
moved to the upstairs portion of the house for the final "bubbling, finishing" phase.
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Andy also testified that Wells cooked at Hickory Hollow with his nephew, Scotty
Abram, Tony Brown, and "Lil Nick," an individual identified by several witnesses as
Wells's frequent companion. Indeed, Abram testified as follows regarding Wells's
relationship with Lil Nick:
Q.: Do you know Lil Nick?
A. [by Abram]: Yes.
Q.: What is the relationship between Lil Nick and the defendant?
A.: They were good friends, right hand/left hand kind of partners.
Q.: Partners in what?
A.: Cooking.
Q.: Was Lil Nick responsible for one part of the cook versus the
other? What was his role?
A.: His role I would say was anhydrous, but there was no
responsibility on any side of the cooking, but that would be one of
his roles.
Q.: He would be responsible for obtaining the anhydrous ammonia?
A.: Correct.
(Emphasis added.)
Andy also testified that he would "just grab little supplies if [Wells] needed" but
stressed that he "wasn't really participating that much at the beginning." Nevertheless,
Andy admitted that, "on occasion," he would purchase coffee filters, Coleman fuel,
and pseudoephedrine and that he witnessed Wells cook methamphetamine 15 to 20
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times at Hickory Hollow, eventually learning the method himself through observation.
Still, Andy maintained that he and Wells had no formal manufacturing agreement but
that when Wells cooked methamphetamine at Hickory Hollow, Wells gave him some
for personal consumption.
Finally, Marjorie Churchill Hadrich testified that, in June 2008, she began
purchasing methamphetamine from Wells and that, soon thereafter, she began
supplying him with methamphetamine precursors including pitchers, spoons, camping
fuel, and muriatic acid. According to Hadrich, Wells would either call her and ask her
to retrieve these items, or she would call him and ask if he needed any. "Quite
frequently," she also drove Wells around to pick up various precursors and "was
sometimes involved in part of the preparation process as far as gathering supplies."
Hadrich also rode around with Wells on three separate occasions looking for tanks
from which he could siphon anhydrous ammonia. Finally, Hadrich confirmed that she
knew Wells cooked methamphetamine with "several people," including "Nick,"
"Jenaya," and "Wes."
On January 6, 2010, at the close of the government's case, Wells moved for a
judgment of acquittal on the conspiracy count. Wells contended that the government
failed to adduce sufficient evidence for any reasonable juror to find that Wells entered
into an agreement with anyone to manufacture methamphetamine. Wells's counsel
argued that
[w]e have all kinds of testimony about trading and selling, but we have
had no testimony that he entered into an agreement to manufacture with
any one of these multiple witnesses the government has called and that
is an element of the crime charged, that there be an agreement to
manufacture and no one has testified that they entered into an agreement
to manufacture. In fact, no one has even seen him manufacture. It is all
supposition[,] therefore I feel a reasonable juror would not be able to
conclude a finding of guilt.
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The district court denied Wells's motion. The jury found Wells guilty on the
conspiracy count, and the district court sentenced Wells to the mandatory-minimum
term of life imprisonment.
II. Discussion
Wells now appeals, contending that there is insufficient evidence of an actual
agreement between himself and another to manufacture methamphetamine.
Additionally, Wells maintains that the district court plainly erred by admitting certain
items into evidence and that his trial lawyer rendered ineffective assistance of counsel.
A. Sufficiency of the Evidence
On appeal, Wells first maintains that the government presented insufficient
evidence of his involvement in a conspiracy to manufacture methamphetamine. The
standard of review governing sufficiency-of-the-evidence challenges is extremely
deferential to the underlying guilty verdict and raises a high bar for a defendant to
overcome:
Although we review the district court's denial of a motion for judgment
of acquittal de novo, the underlying standard of review is highly
deferential to the jury's verdict. We reverse only if no reasonable jury
could have found [the defendant] guilty beyond a reasonable doubt. We
view the evidence in the light most favorable to the guilty verdict,
granting all reasonable inferences that are supported by that evidence.
The standard for reviewing a claim of insufficient evidence is strict, and
a jury's guilty verdict should not be overturned lightly.
United States v. Van Nguyen, 602 F.3d 886, 897 (8th Cir. 2010) (internal quotations
and citations omitted). "This 'very strict' standard allows us to reverse a jury
'conviction only if we conclude that no reasonable jury could have found the accused
guilty beyond a reasonable doubt. Moreover, in making this determination, we may
not weigh the evidence or assess the credibility of witnesses.'" United States v. Malloy,
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614 F.3d 852, 861 (8th Cir. 2010) (quoting United States v. Nolen, 536 F.3d 834, 842
(8th Cir. 2008)).
To convict Wells of conspiring to manufacture methamphetamine, "the
government had to prove that: (1) an agreement to manufacture methamphetamine
existed; (2) [Wells] voluntarily and intentionally joined the agreement, either at the
outset or later; and (3) at the time he joined the agreement, [Wells] knew the purpose
of the agreement was to manufacture methamphetamine." Id. "A defendant's
agreement to enter a conspiracy does not have to be explicit, but can consist of a tacit
or implicit understanding." United States v. Weston, 443 F.3d 661, 669 (8th Cir.
2006). Relatedly, "[p]roof of a defendant's involvement in a conspiracy may of course
be demonstrated by direct or circumstantial evidence." United States v. Lopez, 443
F.3d 1026, 1030 (8th Cir. 2006) (en banc).
We hold that sufficient evidence supports Wells's conviction. The record
supports the jury's finding that he entered into an agreement with at least one other
person to manufacture methamphetamine. Andy testified at trial that Wells regularly
cooked at Hickory Hollow with his nephew, Abram, Brown, and Lil Nick. Likewise,
at trial, Abram characterized Wells's and Lil Nick's relationship as "right hand/left
hand kind of partners" in "[c]ooking," and he testified that Lil Nick typically furnished
the anhydrous ammonia. Further, Hadrich testified that she knew Wells cooked
methamphetamine with "several people," including "Nick," "Jenaya," and "Wes." In
addition to this direct evidence of Wells's participation in the methamphetamine
conspiracy, Hadrich testified that she frequently chauffeured or accompanied Wells
when he went shopping for methamphetamine precursors. Moreover, codefendant Jeff
testified that he assisted Wells in manufacturing methamphetamine at Hickory Hollow
"probably three or four times," although his assistance was limited to "[j]ust providing
[Wells] the location and probably g[iving] him anhydrous [ammonia] a couple of
times." As we have observed, "'a defendant may be convicted for even a minor role
in a conspiracy, so long as the government proves beyond a reasonable doubt that he
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or she was a member of the conspiracy.'" United States v. Smith, 487 F.3d 618, 620
(8th Cir. 2007) (quoting Lopez, 443 F.3d at 1030). Finally, Wells's former cellmate,
Cotton, testified that Wells bragged to Cotton that he taught Jeff and Andy how to
perfect their respective methamphetamine recipes at the Swisher House and that he
also manufactured methamphetamine with Young at an undisclosed farmhouse in
Tiffin.
Wells fails to diminish the sufficiency of this evidence. For instance, he argues
that the government actually charged few of his coconspirators. This fact is immaterial
because the indictment explicitly alleged that Wells conspired with his codefendants
and "with other persons" unnamed and uncharged, and "a person can be convicted of
conspiracy with an unnamed person." United States v. Galvan, 961 F.2d 738, 742 n.6
(8th Cir. 1992) (citing Rogers v. United States, 340 U.S. 367, 375 (1951)). Also, trial
testimony confirmed that the majority of Wells's activities with these unnamed
persons fell within the time period alleged in the indictment. The indictment charged
a conspiracy "beginning on a date unknown to the Grand Jury, but beginning no later
than during or about the Fall of 2007, and continuing to on or about March 20,
2009." (Emphasis added.) Andy testified that he lived at Hickory Hollow from 2005
or 2006 until the summer of 2008 and that soon after he moved into Hickory Hollow,
Wells began manufacturing methamphetamine there once a week. Likewise, Hadrich
testified that in June 2008 she began purchasing methamphetamine from Wells and
that, soon thereafter, she began supplying him with various methamphetamine
precursors. The majority of this period falls squarely within the indicted time frame,
and, thus, the proof does not impermissibly vary from the indictment. See United
States v. Moore, 639 F.3d 443, 446 (8th Cir. 2011) ("A variance exists when the
evidence proves facts that are materially different from those alleged in the
indictment." (quotation and citation omitted)). At any rate, "[w]hen," as in Wells's
case,
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the date of the offense is not an element of the charge, we have held on
many occasions that a variance between the indictment date and the
proof at trial is not fatal so long as the acts charged were committed
within the statute of limitations period, and prior to the return date of the
indictment.
Id. at 447 (quotation and citation omitted). Finally, Wells's conviction is not rendered
legally infirm simply because much of the testimony linking Wells to the conspiracy
came from "jailhouse snitches" and codefendants. Such considerations bear on those
witnesses' credibility, and "[i]t is not our province on appeal to reweigh the evidence
or judge the credibility of witnesses when reviewing the sufficiency of the evidence."
United States v. Anderson, 78 F.3d 420, 422 (8th Cir. 2008).
Thus, sufficient evidence exists to sustain Wells's conviction for conspiring
with others to manufacture methamphetamine.
B. Admission of Certain Evidence
In his next point on appeal, Wells contends that the district court committed
plain error in (1) allowing the jury to hear testimony from a law enforcement official
that Wells maintained a "safe house," (2) admitting into evidence letters addressed to
Wells that were found at the Tiffin House, and (3) admitting into evidence photos of
contraband in Wells's vehicle. Wells did not object at trial to the admission of any of
this evidence. He now maintains that this evidence was unduly prejudicial,
presumably pursuant to Federal Rule of Evidence 403.
When a defendant fails at trial to interpose a timely objection to the introduction
of evidence that the district court admits, this court reviews that evidence's admission
only for plain error. United States v. Adamson, 608 F.3d 1049, 1055 (8th Cir. 2010)
(citing United States v. Marcus, 130 S. Ct. 2159, 2163–64 (2010)). "To establish plain
error [a defendant] must demonstrate that (1) there was an error that he did not
affirmatively waive, (2) the error was clear and obvious, (3) the error affected his
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substantial rights, and (4) the error seriously affected the fairness, integrity or public
reputation of judicial proceedings." Id. Wells has wholly failed to show how the
admission of any of this evidence constituted plain error. Even assuming that there
was error, Wells has not shown that any of these errors affected his substantial rights
or the fairness, integrity, or public reputation of the proceedings. Accordingly, the
district court did not plainly err in admitting this evidence.
C. Trial Counsel's Alleged Ineffectiveness
Finally, citing his trial counsel's failure to object to the aforementioned evidence
and alleging that his trial counsel fell asleep during trial, Wells now urges that he is
entitled to a new trial on the basis that he received ineffective assistance of counsel.
"'[G]enerally, ineffective assistance of counsel claims are better left for
post-conviction proceedings.'" United States v. Rice, 449 F.3d 887, 897 (8th Cir.
2006) (quoting United States v. Cook, 356 F.3d 913, 917 (8th Cir. 2004)). Still, we
routinely review ineffective-assistance claims on direct appeal where "the record is
fully developed because the district court held an evidentiary hearing at which it
allowed [the defendant] to present evidence regarding the alleged ineffective
assistance of counsel." Id. In Wells's case, no such record has been developed.
Namely, Wells did not ask the district court to hold an evidentiary hearing on his trial
counsel's alleged ineffectiveness, and, consequently, none was held. Thus, we decline
review of Wells's ineffective-assistance claims at this time.
III. Conclusion
Based on the foregoing, we affirm.
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