FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50478
Plaintiff-Appellee, D.C. No.
v. 2:09-cr-01126-
SCOTT RAYMOND SHETLER, RGK-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted
August 3, 2011—Pasadena, California
Filed December 28, 2011
Before: Stephen Reinhardt and Marsha S. Berzon,
Circuit Judges, and Matthew F. Kennelly, District Judge.*
Opinion by Judge Reinhardt
*The Honorable Matthew F. Kennelly, District Judge for the U.S. Dis-
trict Court for Northern Illinois, sitting by designation.
21351
UNITED STATES v. SHETLER 21355
COUNSEL
Victor R. Cannon, Glendale, California; Liliana Coronado,
Federal Defender, Los Angeles, California; Ashwini Shrikr-
ishna Mate, Assistant Federal Defender, Los Angeles, Califor-
nia, for the defendant-appellant.
Michael J. Raphael, Assistant U.S. Attorney, Los Angeles,
California; Jerry Chenwei Yang, Assistant U.S. Attorney, Los
Angeles, California, for the plaintiff-appellee.
21356 UNITED STATES v. SHETLER
OPINION
REINHARDT, Circuit Judge:
Scott Raymond Shetler (“Shetler”) appeals from his con-
viction for maintaining his residence “for the purpose of man-
ufacturing, distributing, or using” methamphetamine in
violation of 21 U.S.C. § 856(a)(1). Shetler contends that the
district court erred in denying his motion to suppress certain
inculpatory statements he made to Drug Enforcement Agency
(DEA) officials. Because the government did not bear its bur-
den of showing that these statements were not the product of
government officials’ concededly illegal searches of Shetler’s
home and garage, we reverse his conviction. Shetler further
contends that there was insufficient evidence to support his
conviction, and that the statute is void for vagueness as
applied to him. We conclude that, although the evidence was
sparse, it was sufficient to allow a jury to infer that one of the
primary or principal uses to which Shetler devoted his prop-
erty was the manufacture, distribution, or use of methamphet-
amine. We therefore hold that he is not entitled to a judgment
of acquittal on the ground of insufficient evidence. We also
reject his void for vagueness argument.
I.
1. Factual Background
At 7:40 p.m on September 22, 2009, an anonymous tipster
later revealed to be Jamie Shetler (“Jamie”) called the
Pomona Police Department to report that her father, Shetler,
was manufacturing and using methamphetamine in his home
in Pomona, California. Three police officers arrived at
Shetler’s home shortly after 8 p.m. Shetler’s house has an
attached garage. As the officers approached Shetler’s house,
they noticed that the door to the garage was open, and one
officer smelled a chemical odor associated with possible
methamphetamine production emanating from within. The
UNITED STATES v. SHETLER 21357
officers observed that the garage was full of boxes, motorcy-
cle parts, and other equipment. They also saw a partition wall
that concealed the back portion of the garage from their view.
The officers entered the garage and conducted a visual
sweep to determine if there was an in-operation methamphet-
amine lab or a person behind the partition wall. They did not
find anyone inside the garage or any evidence that metham-
phetamine was then being cooked. The officers did, however,
observe the following items in plain view behind the partition
wall: a can of acetone, a duffel bag containing several plastic
and glass beakers, and a jug that appeared to contain red phos-
phorus, a chemical that the officers knew to be related to the
production of methamphetamine.
At approximately 8:15 p.m., the officers left the garage and
knocked on the front door of the house. Shetler exited the
house from a side door and approached the officers, who
handcuffed and detained him. By this point, several additional
police officers had arrived. The police then called into the
house to Shetler’s girlfriend, Cynthia Marohn, and her daugh-
ter, both of whom lived with Shetler. Marohn and her daugh-
ter stepped outside, and several officers immediately entered
the residence and conducted a sweep. After completing this
search of the house, several officers stayed inside the house,
near the front door and in view of Marohn, who remained out-
side. At 8:45 p.m., while these officers were still inside the
residence, Marohn signed a consent form that authorized the
police to enter the premises and search for “methamphet-
amine, methamphetamine cooking and packaging material,
[and] weapons.”
The police then began to search Shetler’s home and garage.
By 9 p.m., DEA agents had arrived. They put on protective
suits and masks and performed a more thorough search of
Shetler’s garage than the police had previously conducted. By
midnight, they had uncovered a number of items associated
with methamphetamine production, including acetone, iodine
21358 UNITED STATES v. SHETLER
and iodine pellets, hydriatic acid, muriatic acid, Drano, Heet,
flasks with residue, empty bottles of lighter fluid, a water bot-
tle with white residue, a yellow bi-layered liquid, a red pow-
der they suspected to be ground up pseudoephedrine, and a
hot plate. Inside the house, the police recovered a number of
firearms, along with additional items consistent with metham-
phetamine use.
During this entire period, Shetler was detained outside of
his house in view of the extensive ongoing searches. At 1:30
a.m. on September 23rd, a DEA agent read Shetler his
Miranda rights. Shetler then confessed to the agent that he
had been manufacturing methamphetamine in a laboratory in
his garage.
Shetler was taken to the Pomona Police Department, where
he was held until September 24th. At 10 a.m. that morning,
a DEA agent took custody of Shetler. After reading him his
Miranda rights, the agent drove him to his home and interro-
gated him regarding an additional firearm that he suspected
had not yet been recovered. Shetler told the agent that he had
a handgun hidden in a tool box in the back of his garage, and
signed a consent form to allow the agent to enter the garage
and recover the gun. The agent then transported Shetler to a
DEA field office.
At 1 p.m., Shetler was again read his Miranda rights. Four
DEA agents, including Agent Bradley Clemmer, then inter-
viewed him. During this interview, Shetler made multiple
statements regarding his methamphetamine use and produc-
tion, along with statements regarding the firearms and ammu-
nition in his possession. Shetler had not, at the time he gave
these statements, had any contact with a lawyer, and had been
continuously in detention since the time of his arrest.
2. Procedural History
Shetler was charged with maintaining drug-involved prem-
ises in violation of 21 U.S.C. § 856(a)(1) and knowingly pos-
UNITED STATES v. SHETLER 21359
sessing a firearm in furtherance of a drug trafficking crime in
violation of 18 U.S.C. § 924(c)(1)(A)(i). Prior to trial, he
moved to suppress all evidence obtained during the warrant-
less searches of his house and garage on the night of his
arrest, the additional handgun found on September 24th, and
all statements he had made on the night of his arrest and dur-
ing his interview at the DEA office.
After conducting two separate evidentiary hearings, the dis-
trict court held that the initial warrantless sweep of the garage
had been justified under the exigent circumstances, emer-
gency, and protective sweep exceptions to the Fourth Amend-
ment, and that the evidence observed during that sweep — the
can of acetone, the duffel bag containing several beakers, and
the jug of red phosphorus — need not be suppressed. It found,
however, that the initial warrantless sweep of the house could
not be justified under any of the exceptions applicable to the
initial search of the garage, and was therefore illegal. The
court further found that Marohn’s consent to any further
searches was tainted because the police sought her consent
while officers remained physically inside the house after hav-
ing already illegally searched it. All subsequent searches on
the night of the 22nd were therefore deemed to be illegal, and
all evidence obtained during the course of those searches was
suppressed. Also suppressed as the fruit of those illegal
searches was the additional firearm recovered by the DEA
agent on the morning of the 24th, along with any statements
Shetler had made relating to his possession of firearms.1 The
district court denied, however, Shetler’s motion to suppress
the statements relating to his methamphetamine use and man-
ufacture he had made to DEA agents on the night of his arrest
and during the interview at the DEA office. It held that those
statements need not be suppressed because they were “suffi-
ciently the product of the initial legal search of the garage,
and the Defendant’s lawful arrest for methamphetamine man-
1
The district court subsequently dismissed the gun possession charge on
the government’s motion at trial.
21360 UNITED STATES v. SHETLER
ufacture thereon, and were not tainted by the illegal searches
of the garage.”
At trial, the government introduced, through the testimony
of Agent Clemmer, the statements Shetler had made at the
DEA office. Clemmer testified that Shetler had admitted to
manufacturing methamphetamine using a recipe he had
obtained on the internet. He described the procedure of cook-
ing and mixing the various chemicals that Shetler claimed to
use, as well as how Shetler would go to multiple small phar-
macies that would not require him to show identification in
order to attain pseudoephedrine, a necessary component of
methamphetamine. Clemmer also testified that Shetler had
admitted that both he and Marohn consumed the methamphet-
amine he manufactured, that he would use the drug five times
a week, two to three times a day, and that he had begun to use
it in 1989. Clemmer could not recall the exact date that
Shetler claimed to have begun manufacturing methamphet-
amine, but Clemmer believed he had said that it was five
years before his arrest.
The government presented three witnesses in addition to
Agent Clemmer. The first, Pomona police officer James
Suess, described the police’s initial search of Shetler’s garage
and the items they had observed behind the partition wall. The
second, DEA Chemist Helene Jennsen, described the process
of manufacturing methamphetamine, and testified that she had
tested two of the chemicals found in Shetler’s garage and
determined them to be chemicals often used in this process.
The final government witness was Shetler’s daughter,
Jamie. Jamie, who had lived in her father’s house “off and
on” during the prior four years, testified that: (1) Shetler spent
a great deal of his time in the partitioned area of the garage;
(2) while “snoop[ing] around” in that area, she had seen beak-
ers containing fluids, a hot plate, and funnels; (3) she had on
a number of occasions smelled a strong chemical odor ema-
nating from the garage; (4) she had found a recipe for making
UNITED STATES v. SHETLER 21361
methamphetamine on her father’s computer, witnessed him
take a large box of matches and remove all the tips, and had
heard him describe going to different stores in different cities
in order to buy Sudafed (which contains pseudoephedrine);
(5) she had seen pipes in the amoire in Shetler’s bedroom, and
had often heard the flick of a cigarette lighter and coughing
when Marohn and Shetler were in that room; and (6) “often-
times” Shetler would host people in the garage; she described
one night in particular on which there had been a number of
cars parked in the driveway, the doors to the garage were
shut, and it “sounded like a party was going on” inside.
At the close of trial, Shetler made a motion for acquittal,
contending that there was insufficient evidence to sustain his
conviction under 21 U.S.C. § 856 (a)(1), and that the statute
would be void for vagueness if applied to him. The district
court denied the motion. After the jury returned a guilty ver-
dict, Shetler made a motion for new trial or acquittal, renew-
ing his objections that there was insufficient evidence to
sustain his conviction and that the statute as applied to him
was void for vagueness. The district court denied this motion
as well. Shetler now appeals.
II.
Shetler argues, first, that the district court erred in denying
his motion to suppress the statements regarding his drug
activities that he made to a DEA agent on the night of his
arrest outside his home and those he made during his inter-
view at the DEA office 36 hours after his arrest.2 We review
de novo the district court’s denial of Shetler’s motion to sup-
2
Although the district court did not suppress either set of statements, the
Government introduced at trial only those statements that Shetler made at
the DEA office, not those he made while outside his home on the night
of the arrest. We consider, therefore, only whether the district court erred
in failing to suppress this former set of statements, as any error with
respect to the latter was harmless beyond a reasonable doubt. See United
States v. Bishop, 264 F.3d 919, 927 (9th Cir. 2001).
21362 UNITED STATES v. SHETLER
press these statements, and review factual findings underlying
the denial of the motion for clear error. United States v.
Bynum, 362 F.3d 574, 578 (9th Cir. 2004).
[1] The exclusionary rule bars the prosecution from using
at trial evidence that has been obtained through a violation of
the Fourth Amendment. Wong Sun v. United States, 371 U.S.
471, 484-85 (1963). Although exclusion is not itself a per-
sonal constitutional right, it serves to enforce the underlying
personal right to be free from unreasonable searches and sei-
zures by deterring violations of the Fourth Amendment. See
Davis v. United States, 131 S.Ct. 2419, 2426 (2011). The
exclusionary rule applies both to direct products of an illegal
search—i.e., the physical evidence found during the search
itself—and to indirect products of the illegal search—i.e.,
statements or physical evidence subsequently obtained in part
as a result of the search—if they “bear a sufficiently close
relationship to the underlying illegality.” United States v.
Ladum, 141 F.3d 1328, 1336-37 (9th Cir. 1998); see also
Wong Sun, 371 U.S. at 485; United States v. Rodgers, 656
F.3d 1023, 1031 (9th Cir. 2011); United States v. Crawford,
372 F.3d 1048, 1054 (9th Cir. 2004) (en banc) (“It is well
established that the Fourth Amendment’s exclusionary rule
applies to statements and evidence obtained as a product of
illegal searches and seizures.”).
[2] Neither party before this Court challenges the district
court’s determinations that the initial search of Shetler’s
garage was legal, but that all subsequent searches of Shetler’s
home and garage—conducted without a warrant, without
valid consent, and without any justificatory extenuating
circumstances—were illegal. The question, then, is whether
the district court erred in finding that the statements made by
Shetler at the DEA office were not sufficiently connected to
the preceding illegal searches to constitute “fruit of the poi-
sonous tree.” We first ask whether the statements were the
product of the illegal searches; if they were, we then ask
whether they were nevertheless so attenuated from the
UNITED STATES v. SHETLER 21363
searches that suppression was not warranted. See New York v.
Harris, 495 U.S. 14, 19 (1990); Brown v. Illinois, 422 U.S.
590, 598-99 (1975). In doing so, we require the government
to show that the statements were not obtained illegally. United
States v. Patzer, 277 F.3d 1080, 1086 (9th Cir. 2002). “It is
the government’s burden to show that evidence is not ‘fruit of
the poisonous tree.’ ” Id. (quoting United States v. Twilley,
222 F.3d 1092, 1097 (9th Cir. 2000)); see Brown, 422 U.S. at
604.
The government did not bear its burden of showing that
Shetler’s statements were not the product of the illegal
searches. Contrary to the district court’s determination, there
is no evidence in the record to support the conclusion that the
statements were “the product of the initial legal search of the
garage, . . . and were not tainted by the illegal searches of the
garage.” Both the district court and the government appear to
presume that the relevant inquiry is whether the agents could
have questioned Shetler regarding his drug activities but for
the illegal search. The logic underlying this position is as fol-
lows: because the government had probable cause, regardless
of any evidence revealed during the illegal searches of his
house and garage, to arrest and question Shetler as to whether
he used or manufactured methamphetamine, the statements he
made during that questioning cannot be considered the prod-
uct of the illegal searches.
[3] Although the presence of probable cause may generally
be the “dispositive” issue in determining whether a confession
stemming from an illegal detention should be suppressed, see
Crawford 372 F.3d at 1056, “[t]he analysis that applies to ille-
gal detentions differs from that applied to illegal searches,” id.
at 1054 (citing 5 Wayne R. LaFave, Search and Seizure 273,
§ 11.4(c) (3d ed. 1996)). As Shetler’s case illustrates, there
are at least two additional relevant considerations when a con-
fession follows an illegal search rather than an illegal deten-
tion.
21364 UNITED STATES v. SHETLER
[4] The first additional consideration in an illegal search
case is that the interrogating officers may confront the sus-
pect, either physically or verbally, with the evidence that has
been illegally obtained. See Ruiz v. Craven, 425 F.2d 235 (9th
Cir. 1970). Compare with Crawford 372 F.3d at 1058 (hold-
ing that the “necessary connection” between the illegal search
at issue and the defendant’s later confession was missing in
part because the search “produced no evidence whatsoever”).
The government has not brought forth evidence to refute the
likelihood that the DEA agents, in eliciting statements from
Shetler when questioning him regarding his drug use and
manufacture, utilized the extensive evidence illegally seized
from Shetler’s home and garage. A question such as “did you
manufacture methamphetamine in your garage?” might not
confront Shetler with illegally seized evidence; a question
such as “did you manufacture methamphetamine using iodine
and iodine pellets, hydriatic acid, muriatic acid, Drano, Heet,
flasks, empty bottles of lighter fluid, a water bottle with white
residue, a yellow bi-layered liquid, ground up psuedoephe-
drine, and a hot plate, all of which we found in your garage?”
certainly would. Although it is possible that the DEA agents
who interrogated Shetler restricted themselves to questions of
the former variety—using only their general knowledge that
Shetler might be manufacturing methamphetamine, together
with the acetone, beakers, and jug of red phosphorus seen in
the initial, legal search—as the government conceded at oral
argument, there is no evidence in the record that they did not
also confront him with the illegally seized evidence in their ques-
tioning.3
3
The government attempts to analogize this case to United States v.
Green, 523 F.2d 968 (9th Cir. 1975), in which we held that the defen-
dant’s confession was not the product of an illegal search that yielded 400
pounds of marijuana because the defendant had also, prior to making his
statements, been confronted with 880 pounds of marijuana recovered dur-
ing a lawful search. Id. at 972. Although we concluded in Green that “the
role of the suppressed evidence in producing [the defendant’s confession]
must be considered de minimis” in light of the substantial additional phys-
ical evidence with which Green was confronted, id., here the physical evi-
dence obtained in the illegal search was significantly greater and more
inculpatory than the three items observed during the initial legal sweep of
Shetler’s garage.
UNITED STATES v. SHETLER 21365
[5] A second, related, consideration in an illegal search
case such as this is that the answers the suspect gives to offi-
cials questioning him may be influenced by his knowledge
that the officials had already seized certain evidence. “Con-
fronting a suspect with illegally seized evidence tends to
induce a confession by demonstrating the futility of remaining
silent.” 6 Wayne R. LaFave, Search and Seizure 307,
§ 11.4(c) (4th ed. 2004) (quoting People v. Robbins, 369
N.E.2d 577, 581 (Ill. App. Ct. 1977)). The government has
produced no evidence to demonstrate that the answers Shetler
gave to the government officials’ questions were not induced
or influenced by the illegal search; indeed, there is every rea-
son to believe that they were. Nothing in the record suggests
that Shetler was aware of the initial, legal search of his
garage: he came out of a side door of his house shortly after
the officers had already completed their initial sweep. There
is, on the other hand, irrefutable evidence that while detained
outside his home for more than five hours he witnessed multi-
ple illegal searches of his house and garage, including a set of
lengthy searches, using protective clothing and masks, of the
garage which he knew contained extensive materials associ-
ated with methamphetamine production. Witnessing govern-
ment officials conduct these extensive searches that
uncovered numerous items indicative of methamphetamine
production could certainly have led Shetler to make the incul-
patory statements he made to the DEA agents. Contrary to the
district court’s holding, therefore, these statements cannot be
said to be simply the product of the initial legal search (of
which Shetler was likely unaware) rather than the extensive
subsequent illegal searches (of which Shetler was undoubt-
edly acutely aware).
[6] Nor has the government borne its burden of showing
that, if Shetler’s statements were the product of the illegal
searches of his home and garage, they were nevertheless suffi-
ciently attenuated from the government’s illegal conduct so as
not to warrant suppression. “Challenged evidence is not con-
sidered the fruit of lawless police conduct when the connec-
21366 UNITED STATES v. SHETLER
tion between the illegality and the evidence becomes ‘so
attenuated as to dissipate the taint.’ ” United States v.
$186,416.00 in United States Currency, 590 F.3d 942, 951
(9th Cir. 2010) (quoting Wong Sun, 371 U.S. at 491). Three
factors are relevant in determining whether Shetler’s state-
ments were sufficiently attenuated from the underlying ille-
gality to be admissible: (1) the temporal proximity of the
search to the confession; (2) the presence of intervening cir-
cumstances; and (3) the purpose and flagrancy of the official
misconduct. Id. (citing Brown, 422 U.S. at 603-04).
[7] Although the 36 hours that passed between the illegal
search and Shetler’s confession at the DEA office is a rela-
tively long time, the temporal proximity factor does not weigh
in the government’s favor. The relevant question for attenua-
tion purposes is whether this passage of time would have in
any way dissipated Shetler’s perception that the searches had
produced evidence such that his remaining silent would be
useless, or decreased the extent to which the government’s
confronting Shetler with the illegally seized evidence induced
his statements. “[T]o draw any conclusions from [the] timing
of [the defendant’s] confessions, we must consider the tempo-
ral proximity factor in conjunction with the presence of inter-
vening circumstances.” United States v. Reed, 349 F.3d 457,
464 (7th Cir. 2003). For this reason, there is “no ‘bright-line’
test for temporal proximity in an attenuation analysis.”
$186,416.00 in U.S. Currency, 590 F.3d at 951 (holding that
a two month gap between an illegal search and a defendant’s
subsequent declaration was not sufficient to render the decla-
ration attenuated from the search); see also 6 Wayne R.
LaFave, Search and Seizure 307, § 11.4(c) (4th ed. 2004)
(observing that “the Brown ‘temporal proximity’ factor is of
virtually no significance” when evaluating a confession that
followed an illegal search). Here, there is no reason to think
that the passage of 36 hours would have weakened the causal
connection between the illegal searches and Shetler’s state-
ments, particularly because the DEA agents may have con-
UNITED STATES v. SHETLER 21367
fronted Shetler with illegally seized evidence during the
interview in which he made those statements.
[8] There are likewise no intervening circumstances that
break the causal chain between the searches and the confes-
sion. Shetler spent the intervening period in detention, and did
not speak to a lawyer. Although Shetler did receive Miranda
warnings on at least three occasions after the illegal searches
and before his confession in the DEA office, such warnings
are insufficient to “purge the taint of a temporally proximate
prior illegal” act. United States v. Washington, 387 F.3d 1060,
1075 (9th Cir. 2004). As the Supreme Court declared in
Brown, “Any incentive to avoid Fourth Amendment viola-
tions would be eviscerated by making [Miranda] warnings, in
effect, a ‘cure-all,’ and the constitutional guarantee against
unlawful searches and seizures could be said to be reduced to
‘a form of words.’ ” 422 U.S. at 602-03 (quoting Mapp v.
Ohio, 367 U.S. 643, 648 (1961)).4
4
In contrast, in the absence of a deliberate law enforcement decision to
conduct an un-Mirandized interrogation in advance of one with Miranda
warnings, see Missouri v. Seibert, 542 U.S. 600, 620-22 (2004) (Kennedy,
J., concurring), a “careful and thorough administration of Miranda warn-
ings serves to cure” a confession that would otherwise be inadmissible
based on a theory that it was induced by a prior confession made in the
absence of Miranda warnings. Oregon v. Elstad, 470 U.S. 298, 310-11
(1985). That is because obtaining a confession without Miranda warnings
is not in itself unconstitutional, see Chavez v. Martinez, 538 U.S. 760,
766-67 (2003); only use of the confession during criminal proceedings
violates the Fifth Amendment, see Stoot v. City of Everett, 582 F.3d 901,
923-25 (9th Cir. 2009). So, in the double-confession context, the question
is the voluntariness of the second confession in light of the first, not the
“taint” from prior illegal conduct. Seibert and Elstad do not govern
Shetler’s claim, which is that his confession was “directly or indirectly
attributable to [a Fourth Amendment] violation,” Crawford, 372 F.3d at
1058, not that his confession was coerced by his having previously made
an un-Mirandized confession. See Elstad, 470 U.S. at 306 (“Where a
Fourth Amendment violation ‘taints’ the confession, a finding of voluntar-
iness for the purposes of the Fifth Amendment is merely a threshold
requirement in determining whether the confession may be admitted in
evidence.”).
21368 UNITED STATES v. SHETLER
[9] Finally, the government has not shown that the third
attenuation factor, the purpose and flagrancy of the illegal
search, weighs against suppression of Shetler’s statements. A
statement is more likely to be tainted if there is evidence that
the illegal conduct that preceded it involved “either purpose-
ful extraction of evidence or flagrant illegality.” Washington,
387 F.3d at 1075 n.17. Although the government argued
before the district court that the initial warrantless search of
the house was done as part of a protective sweep, the district
court rejected this claim because there was no plausible threat
emanating from the house. More important, the police never
left the house after performing this search, staying in a room
near the entryway for approximately 25 minutes. That they
did so before asking for Marohn’s consent to enter and search
the house, and that some officers remained inside the house
while others obtained her (tainted) consent, constituted fla-
grant misconduct. See Washington, 387 F.3d at 1076 (finding
it “difficult to conclude that the officers acted in good faith”
when they had asked for consent after they already unconsti-
tutionally entered the defendant’s room). Moreover, the pur-
pose of the subsequent illegal searches was indisputably to
find evidence that could be used against Shetler. The evidence
found during these searches was, of course, the very same evi-
dence we have determined to be causally connected to
Shetler’s statements. “Because this unbroken ‘causal chain’
links the initial illegality and [Shetler’s] subsequent state-
ment[s], the [statements are] not ‘sufficiently an act of free
will to purge the primary taint’ from the [officials’] unlawful
actions.” $186,416.00 in U.S. Currency, 590 F.3d at 953
(quoting Brown, 422 U.S. at 602).
[10] We hold that the government did not bear its burden
of proving that Shetler’s statements to DEA officials were not
the product of the illegal searches of his home and garage, and
that the district court therefore erred in denying Shetler’s
motion to suppress these statements. The government does
not contend that the admission of the statements at trial
through the testimony of Agent Clemmer was harmless
UNITED STATES v. SHETLER 21369
beyond a reasonable doubt. See Bishop, 264 F.3d at 927. Nor
could it, as Shetler’s confession was central to the prosecu-
tion’s case.5 Accordingly, Shetler’s conviction must be
reversed.
III.
We now consider Shetler’s claims that, if successful, would
entitle him to a judgment of acquittal. See United States v.
Williams, 547 F.3d 1187, 1195 (9th Cir. 2008).6 Shetler chal-
lenges the sufficiency of the evidence to sustain his convic-
tion under 21 U.S.C. § 856(a)(1), and argues that the statute
is unconstitutionally vague as applied to his residential drug
activities. Both claims require an examination of the scope of
§ 856(a)(1).
1. 21 U.S.C. § 856(a)(1)
[11] Under § 856(a)(1), which is also known as the federal
“crack-house” statute, see United States v. Verners, 53 F.3d
291, 293 (10th Cir. 1995), it is unlawful to:
knowingly open, lease, rent, use, or maintain any
place, whether permanently or temporarily, for the
purpose of manufacturing, distributing, or using any
controlled substance.
21 U.S.C. § 856(a)(1).
Shetler’s challenge to his conviction turns in large part on
the meaning of the phrase “for the purpose of” in § 856(a)(1).
Although some circuits have attempted to define the requisite
5
As the prosecutor emphasized in his closing argument, “[M]ost impor-
tantly, ladies and gentlemen, the defendant confessed. He confessed.”
6
Because we hold that the failure to suppress Shetler’s confession in the
DEA office was reversible error, we need not reach Shetler’s claim that
aspects of the jury instructions given by the district court were erroneous.
21370 UNITED STATES v. SHETLER
type and degree of purpose connecting a defendant’s use of
property and his drug activities under § 856(a)(1), we have
not yet directly confronted the issue. Courts to consider the
question have agreed that § 856(a)(1) does not apply to occa-
sional drug use in one’s own home. As the D.C. Circuit has
held, “The ‘casual’ drug user does not run afoul of
[§ 856(a)(1)] because he does not maintain his house for the
purpose of using drugs but rather for the purpose of residence,
the consumption of drugs therein being merely incidental to
that purpose.” United States v. Lancaster, 968 F.2d 1250,
1253 (D.C. Cir. 1992); accord United States v. Russell, 595
F.3d 633, 642-43 (6th Cir. 2010); Verners, 53 F.3d at 296.
There is also a consensus that to secure a conviction under the
statute the government need not show that the drug activities
were the sole purpose of the defendant’s use of the property.
The Fifth, Sixth, Seventh and Tenth Circuits have all so held.
United States v. Roberts, 913 F.2d 211, 220 (5th Cir. 1990),
cert denied sub nom. Preston v. United States, 500 U.S. 955
(1991); Russell, 595 F.3d at 642-43; United States v. Church,
970 F.2d 401, 406 (7th Cir. 1992); Verners, 53 F.3d at 296;
see also Moore v. United States, 927 A.2d 1040, 1053 (D.C.
2007) (interpreting parallel provision of the D.C. code). As
the Fifth Circuit observed, “Had Congress intended convic-
tions under [§ 856(a)(1)] to be limited to those who open or
maintain facilities having [drug] manufacturing as their sole
purpose, it would have said so.” Roberts, 913 F.2d at 220. In
attempting to delineate where between the poles of “incidental
use” and “sole purpose” lies the degree of “purpose” neces-
sary for the drug-based use of a property to constitute a viola-
tion of § 856(a)(1), courts have employed various
formulations, ranging from a requirement that the drug activi-
ties constitute “a significant purpose” of the property’s use,
United States v. Soto-Silva, 129 F.3d 340, 346 n.4 (5th Cir.
1997), to a requirement that they constitute “one of the pri-
mary or principal uses” of the property, Verners, 53 F.3d at
296.
[12] To the extent that there is a meaningful difference
between these various formulations, we agree with the Tenth
UNITED STATES v. SHETLER 21371
Circuit that “in the residential context, the manufacture (or
distribution or use) of drugs must be at least one of the pri-
mary or principal uses to which the house is put.” Id. Restrict-
ing the application of § 856(a)(1) to those individuals whose
manufacture, distribution, or use of drugs in their residence
constitutes “one of the primary or principle” purposes of their
occupancy of that residence ensures that the statute does not
extend beyond its intended coverage so as to encompass “in-
cidental” drug use, see Lancaster, 968 F.2d at 1253, a slip-
page that might occur were only “a significant purpose”
required. This formulation also better comports with the statu-
tory language, which proscribes only those drug activities that
are “the purpose” to which the property is put. § 856(a)(1)
(emphasis added). Moreover, the construction of § 856(a)(1)
we adopt ensures that the statute is not unconstitutionally
vague. See infra section III.3; Skilling v. United States, 130
S.Ct. 2896, 2929 (2010) (“It has long been [our] practice . . .
before striking a federal statute as impermissibly vague, to
consider whether the prescription is amenable to a limiting
construction.”).
[13] Shetler contends that § 856(a)(1) should be inter-
preted to apply only to those who use their property for com-
mercial drug activities. Although his argument is not
unreasonable, we do not read the statute so narrowly. Nothing
in the text of the statute limits its application to commercial
drug sales. Nor does the statute’s place within the federal drug
laws provide support for Shetler’s construction. Although
Shetler is correct that other statutes already criminalize pos-
session and manufacture of a controlled substance, a commer-
cial purpose requirement is not necessary to save § 856(a)(1)
from redundancy: in contrast to other federal drug laws,
§ 856(a)(1) is designed to proscribe particular “use[s] of prop-
erty” to further drug activities. United States v. Stumoski, 971
F.2d 452, 461-62 (10th Cir. 1992) (emphasis added). More-
over, none of the other circuits has held that the statute pro-
scribes only commercial drug activities. Finally, we have
previously upheld convictions under § 856(a)(1) without ref-
21372 UNITED STATES v. SHETLER
erence to whether the drugs manufactured at a property were
subsequently sold for profit. See United States v. Hollis, 490
F.3d 1149, 1154 (9th Cir. 2007); United States v. Basinger, 60
F.3d 1400, 1406 (9th Cir. 1995).
[14] That said, Shetler is correct that Congress’s primary
purpose in enacting § 856(a)(1) was to target those who use
their property to profit from drug sales. As then-Senator Joe
Biden explained after the enactment of the 2003 amendment
to § 856, which he authored, the statute “does not criminalize
simple consumption of drugs in one’s home.” 149 Cong. Rec.
S10608 (daily ed. July 31, 2003); see Lancaster, 968 F.2d at
1253. Thus, even if it is not a separate element of § 856(a)(1)
that a defendant’s manufacture, distribution or use of drugs be
commercial in nature, convictions under the statute will usu-
ally involve some aspect of a commercial drug transaction. As
the Tenth Circuit explained,
[T]he “crack-house” statute was designed to punish
those who use their property to run drug businesses
— hence, the more characteristics of a business that
are present, the more likely it is that the property is
being used “for the purpose of” those drug activities
prohibited by § 856(a)(1).
Verners, 53 F.3d at 296-97. Particularly where the property in
question is the defendant’s own home—and is devoted princi-
pally to the ordinary activities of residential living—evidence
beyond drug manufacture for personal use is necessary to sus-
tain a conviction under § 856(a)(1).7 An individual does not
7
In United States v. Basinger, we upheld a defendant’s conviction under
§ 856(a)(1) based on evidence showing that he used a shed located on
someone else’s property as a clandestine methamphetamine laboratory. 60
F.3d at 1406. There was no contention in that case that the defendant was
manufacturing drugs solely for personal use. See id. Moreover, when the
lab was discovered, Basinger, who had parked his trailer on the property
with the owner’s permission for approximately a month, no longer main-
tained it there; thus, there was no competing residential use that the jury
could conclude rendered his drug activities anything other than his pri-
mary or principle use of the property. Id. at 1404.
UNITED STATES v. SHETLER 21373
employ his property for a “primary or principal” use of drug
activity where he merely grows or manufactures drugs in his
own home for his own consumption (and for those who share
his residence and its residential purposes). In sum, although
the evidence necessary for conviction will therefore generally
involve actual commercial drug transactions, it may in some
circumstances be possible for a jury to infer that a defendant’s
drug activities were a “primary or principal use” of the prop-
erty where, even if he does not profit financially from such
activity, there is evidence that drug activity involving con-
sumption or use by numbers of non-resident individuals
occurs in the home.
2. Sufficiency of the Evidence
We review de novo Shetler’s appeal from the district
court’s denial of his motion for acquittal. United States v. Sul-
livan, 522 F.3d 967, 974 (9th Cir. 2008). We engage in a two-
step process when considering a defendant’s challenge to the
sufficiency of the evidence: we first construe the evidence “in
the light most favorable to the prosecution,” and we then
determine whether “any rational trier of fact could have found
the essential elements of the crime beyond a reasonable
doubt.” United States v. Nevils, 598 F.3d 1158, 1161 (9th Cir.
2010) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979))
(internal quotation marks omitted). Evidence is insufficient to
sustain a conviction when, viewed in the light most favorable
to the prosecution, it is “so supportive of innocence that no
rational juror could conclude that the government proved its
case beyond a reasonable doubt,” or “where mere speculation,
rather than reasonable inference, supports the government’s
case.” Id. at 1167.
[15] Although it is a close question, we conclude that the
prosecution presented sufficient evidence to permit the jury to
infer that one of the primary or principal uses to which Shetler
put his property was the manufacture, distribution or use of
methamphetamine for a purpose other than consumption by
21374 UNITED STATES v. SHETLER
himself and those who shared his home. There was undis-
puted evidence that Shetler regularly manufactured metham-
phetamine, and that he often hosted gatherings in his garage.
Because the gatherings were held in a garage in which
methamphetamine was being manufactured, and because the
garage was closed during the gatherings, the jury could have
inferred that methamphetamine that Shetler manufactured was
consumed at the gatherings. See Cavazos v. Smith, 181 L. Ed.
2d 311, 316 (2011) (per curiam) (“[A] reviewing court ‘faced
with a record of historical facts that supports conflicting infer-
ences must presume—even if it does not affirmatively appear
in the record—that the trier of fact resolved any such conflicts
in favor of the prosecution, and must defer to that resolu-
tion.’ ”) (quoting Jackson, 443 U.S. at 326). Thus, the evi-
dence was sufficient to allow the jury to find that Shetler’s
drug activities were not purely personal, but also included the
supplying of drugs to persons who did not reside on his prop-
erty. We therefore reject Shetler’s sufficiency of the evidence
challenge.
3. Void for Vagueness
Whether a statute is void for vagueness is reviewed de
novo. United States v. Mincoff, 574 F.3d 1186, 1191-92 (9th
Cir. 2009). In an as-applied challenge such as Shetler’s, “a
statute is void for vagueness (and thus unconstitutional under
due process) if the statute ‘(1) does not define the conduct it
prohibits with sufficient definiteness and (2) does not estab-
lish minimal guidelines to govern law enforcement.’ ” United
States v. Wyatt, 408 F.3d 1257, 1260 (9th Cir. 2005) (quoting
United States v. Rodriguez, 360 F.3d 949, 953 (9th Cir.
2004)); see Giaccio v. Pennsylvania, 382 U.S. 399, 402-03
(1966).
[16] Shetler contends that § 856(a)(1) does not “give a per-
son of ordinary intelligence a reasonable opportunity to
know” that it would apply to the sort of drug manufacture,
distribution, and use in which he engaged. Although he is cor-
UNITED STATES v. SHETLER 21375
rect to point out that the line drawn to determine the bounda-
ries of the statute if construed broadly would be hazy, it is not
unconstitutionally vague if narrowly construed. See Grayned
v. City of Rockford, 408 U.S. 104, 110 (1972) (upholding
ordinance “marked by flexibility and reasonable breadth,
rather than meticulous specificity”) (quotation omitted); see
also Skilling, 130 S.Ct. at 2929, discussed supra at p. 21371.
Individuals subject to the statute, and officials enforcing it,
have sufficient standards to guide them when § 856(a)(1) is
limited in the manner we have explained. As the Eleventh
Circuit observed in rejecting a similar void for vagueness
challenge to an earlier version of § 856(a)(1), “[t]he presence
of the two intent elements, ‘knowingly’ and ‘for the purpose’
does much to eliminate the contention of vagueness or unfair-
ness in application.” United States v. Clavis, 956 F.2d 1079,
1094 (11th Cir. 1992) (citing Village of Hoffman Estates v.
The Flipside, 455 U.S. 489, 499 (1982)).8 A defendant who
knowingly devotes his property to a primary or principle use
of manufacturing, distributing, or using a controlled substance
for other than personal consumption has notice that his sub-
stantial drug activities fall within § 856(a)(1)’s purview. Simi-
larly, law enforcement officials have sufficient guidance in
enforcing the statute if they are constrained by a requirement
that only those drug activities that are a “primary or principle
use” of a residence, usually commercial activities or at least
the activities of individuals who do not reside in the putative
8
At the time Clavis was decided, § 856(a)(1) made it illegal to “ ‘know-
ingly maintain or open any place for the purpose of manufacturing, distrib-
uting, or using any controlled substance.’ ” 956 F.2d at 1090 (quoting 21
U.S.C. § 856(a)(1)). In 2003, the statute was amended to its present lan-
guage. Although the “knowingly” and “for the purpose” terms remain, the
2003 amendments broadened the statute to cover not only those who
“maintain” or “open” a place, but also those who “lease, rent, or use . . .
any place, whether permanently or temporarily.” 21 U.S.C. § 856(a)(1)
(amended 2003). The amendments increase the possibility that § 856(a)(1)
would be unconstitutionally vague if construed expansively. What is
meant by “use” of “any place . . . temporarily” is, for example, certainly
far from clear.
21376 UNITED STATES v. SHETLER
defendant’s home, are proscribed. Accordingly, we hold that
§ 856(a)(1), as so applied, is not void for vagueness with
respect to Shetler.
IV.
We hold that the district court erred in denying Shetler’s
motion to suppress the statements he made to DEA agents
regarding his drug activities. We affirm, however, the district
court’s denial of Shetler’s motions for acquittal and new trial
on the grounds that there was insufficient evidence to sustain
his conviction under § 856(a)(1) and that the statute was void
for vagueness as applied to him. Accordingly, we reverse
Shetler’s conviction, and remand for further proceedings con-
sistent with this opinion.
REVERSED and REMANDED.