UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
-------------------------
No. 92-8296
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
HAROLD C. RIDLEHUBER, JR.,
Defendant-Appellant.
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Appeal from the United States District Court for the
Western District of Texas
-------------------------
December 29, 1993
Before EMILIO M. GARZA and DeMOSS, Circuit Judges, and ZAGEL,1
District Judge.
Zagel, District Judge:
Harold Ridlehuber, Jr., convicted of possessing an
unregistered short-barreled shotgun, was sentenced to thirty months
in prison, a three-year term of supervised release and a $3000
fine. He appeals from that conviction.
1
District Judge of the Northern District of Illinois,
sitting by designation.
1
I. FACTS
Much of the physical evidence in this case was seized in
September 1991 when law enforcement officers executed several
search warrants in Hillsboro, Texas. During the search of a house
leased by Harold Ridlehuber, Sr., for the use of his son, the
defendant, officers found a short-barreled Stevens Savage 20-guage
shotgun resting on an open shelf in the kitchen.2 Next to the
shotgun, the officers found an ammunition clip for a Colt AR-15
rifle. In another part of the house the officers found a Mossberg
20-guage shotgun of legal length standing upright against a wall
quite near a door, two more AR-15 clips and a box of 20-guage
shells. A few 20-guage casings were found on the driveway. In
addition to the weapons, the officers found the following: a drum
containing 230 pounds of sulfuric acid, two gallons of ether, a can
of ether starting fluid, a pan containing aluminum shavings, a hot
plate, tubing, a Pyrex funnel, thermometers, and rubber stoppers.
Search warrants were also executed at Ridlehuber, Sr.'s home
and at his place of business, a Hillsboro metal plating shop where
defendant worked with his father. In Ridlehuber, Sr.'s house was
a Colt AR-15 rifle and magazines, which Ridlehuber, Sr. said
belonged to his son. At the business office, agents seized
numerous chemicals including phenylacetonitrile, ethyl acetate,
sodium hydroxide, monomethylamine, ether, muriatic acid, acetone,
and reagent alcohol. In defendant's truck, parked at his father's
2 For clarity, the Court will refer to the appellant, Harold Ridlehuber, Jr., as "defendant" or
"Ridlehuber," and his father, Harold Ridlehuber, Sr., as "Ridlehuber Sr."
2
office, was a loaded .45 caliber pistol. Except for the
monomethylamine, all of the chemicals were later returned to
Ridlehuber Sr., who used the chemicals in his metal plating
business.
Facts like these are hard to dispute and defendant did not
bother to do so. At trial, the parties presented their respective
versions of what these facts mean. The central issue on appeal
concerns how the government went about convincing the jury that its
interpretation of the facts is the right one.
The evidence presented by the government at trial had a dual
focus: drugs and guns. The evidence relating to drugs provided a
motive for defendant's possession of the shotgun, while the gun
formed the basis for the weapons charge. Motive is not an element
of the crime for which defendant was convicted. But the government
can prove motive even when it does not have to and here it wanted
to provide an explanation for why the gun was in the house.
Indeed, proof of defendant's motive for possessing the gun took
center stage at trial; the gun itself, like a corpse that opens a
detective story, served more as a prop around which the
government's theory of the case revolved.
In the government's case-in-chief, several government
witnesses, law enforcement personnel experienced in the
investigation of drug labs, said that the chemicals and other
materials found in defendant's residence and place of employment
could be used to manufacture illegal drugs, namely, methamphetamine
or amphetamine. This fact was not mentioned in passing. Rather,
3
several witnesses highlighted the possible connection between the
evidence seized and the manufacture of drugs. And the government
wasted no time presenting this possible connection to the jury.
The government's first witness was Robert Wilkerson, a narcotics
investigator with the Texas Department of Public Safety, who
participated in the investigation leading to Ridlehuber's arrest.
The first subject of Wilkerson's testimony was his experience
dealing with "individuals engaged in the manufacture of
methamphetamine and amphetamine," illegal drugs "generally
manufactured by individuals privately." He then identified the
defendant and testified about the search warrants that were
executed on September 9, 1991 at defendant's residence and place of
employment.
Wilkerson was shown about thirteen photographs taken at J & R
Coating, Ridlehuber, Sr.'s metal plating shop. Most of the
photographs were of various chemicals used in the business that
were stored at the shop. Wilkerson testified that although the
chemicals shown in the photographs have legitimate uses, some of
the chemicals are frequently found in illicit methamphetamine and
amphetamine labs. Wilkerson also testified briefly about weapons
and ammunition found during the search. Specifically, a pistol and
ammunition clip were found on the floorboard of defendant's truck,
a Colt AR-15 rifle and ammunition were discovered at his father's
home.
4
Two narcotics investigators testified about the execution of
the search warrant at defendant's residence. Both testified that
the residence had a distinct chemical odor that they have come to
associate with clandestine drug labs that produce methamphetamine
and amphetamine. One investigator, Coy West, testified about the
chemicals and other items, such as aluminum shavings, a hot plate,
plastic tubing and thermometers, that were found in defendant's
residence. He said he had seen the same kinds of chemicals and
other items in clandestine drug labs.3
A Bureau of Alcohol, Tobacco and Firearms agent named Ruben
Chavez testified about the short-barreled shotgun found on
defendant's kitchen shelf. Chavez explained that a short-barreled
or sawed-off shotgun is a gun that was at one time legal, but has
been modified such that the barrel length is less than 18 inches or
the overall length is less than 26 inches. The shotgun found in
defendant's residence had a barrel length of 15 and 3/4 inches and
an overall length of approximately 25 and 1/2 inches. According to
Chavez, although the hammer was broken off, the gun could be cocked
and fired if the hammer were pulled back with a tool, such as a pen
or screwdriver. Furthermore, Chavez testified that sawed-off
3
At a sidebar during West's direct testimony, defense
counsel objected on relevance grounds to the government's focus on
drugs: "my client is not on trial for drugs, he's on trial for
possession of a weapon." The court overruled the objection. At
the end of West's direct testimony, the court instructed the jury
that any evidence "concerning suggestions about a drug laboratory
is admitted only for the limited purpose of your consideration, if
you wish to consider it, as [sic] any motive that Mr. Ridlehuber
might have had in possessing the firearm in question. He's not on
trial for operating any drug lab."
5
shotguns are commonly found in drug labs for three reasons. Their
reduced size makes them easier to conceal, easier to wield in a
gunfight, and the short barrel creates an extreme spread pattern
that can knock down multiple adversaries. Chavez did not specify
that the shotgun at issue here would fulfill all these purposes.
The testimony of one of the government's witnesses, Deborah
Reagan, a chemist with the Texas Department of Public Safety, was
focused exclusively on the prosecution's drug lab theory. After
attesting to her extensive experience analyzing evidence seized
from clandestine drug labs, Reagan testified in detail about the
various chemicals seized in connection with this case and their
potential usefulness in the production of methamphetamine or
amphetamine.4 She testified that the chemicals found at
defendant's residence and place of employment were precursor
chemicals necessary in the production of methamphetamine and
amphetamine. Reagan stated that although the chemicals found were
necessary to make methamphetamine and amphetamine, two precursor
chemicals were not found.
Of the seven witnesses that the government called in its case-
in-chief, five gave testimony in support of the government's theory
that defendant possessed the shotgun to protect a clandestine drug
4
During Reagan's testimony, defense counsel interposed
another relevancy objection similar to the one advanced during
West's testimony. The court overruled the objection and instructed
the jury that "this evidence is offered only for your consideration
as to any possible motive, not for any other purposes."
6
lab.5 The government continued its efforts to buttress this theory
during the cross examination of Ridlehuber, Sr. Most of the
inquiries on cross concerned the chemicals used in the metal
plating business--Ridlehuber Sr.'s methods for storing the
chemicals, his recordkeeping practices with regard to the
chemicals, and the potential for the illegal use of the chemicals
to manufacture drugs. And in his closing argument, the prosecutor
articulated what had been intimated all along: Ridlehuber
possessed the sawed-off shotgun to protect an illegal drug lab.
The strongest evidence linking defendant to the sawed-off
shotgun is that it was found on an open shelf in the kitchen of the
house that defendant's father leased for his son's use.6 Defendant
maintains that the shotgun is not his but, rather, is the property
of William Starrett, a man who lived with defendant in the leased
house for about a month during July and August of 1991. Starrett
was no longer living with defendant when the search warrants were
executed in September 1991, but his belongings were found in one of
the bedrooms of the leased house when it was searched.
Although there is evidence that defendant was in relatively
close proximity to the short-barreled shotgun, there is no evidence
that defendant ever handled or closely examined the gun. In
addition to the gun being on an open shelf, defendant also had an
5
The testimony of the other two witness was brief, spanning
a combined total of nine pages of the trial transcript.
6
Defendant actually maintained two residences, living part-
time with his father and stepmother and part-time at the leased
house. Defendant kept most of his clothes and other possessions at
his father's house, and ate most of his meals there.
7
opportunity to view the gun when Starrett first brought it to the
leased house. One of the defense witnesses, Joseph Williford,
testified that defendant and he were barbecuing hamburgers when
Starrett drove up and took the shotgun out of his car. Starrett
held up the gun and said it did not work, but that he was going to
try and get it fixed. Williford said that defendant did not handle
the gun on that occasion, and that he never saw the gun again.
II. ADMISSION OF "OTHER ACTS" EVIDENCE UNDER RULE 404(b)
Before trial Ridlehuber's counsel moved in limine for an order
directing the government to refrain from offering or alluding to
evidence of drug manufacturing by defendant. Such evidence,
defendant argued, should be excluded under Federal Rule of Evidence
404(b) as evidence of an extrinsic offense offered to prove that he
was a person of bad character.7 Defendant also argued that even if
the drug-related evidence was relevant, its probative value was
substantially outweighed by the danger of unfair prejudice. The
trial court denied defendant's motion and overruled similar
objections interposed by defendant at trial. On appeal, defendant
argues that the extrinsic offense evidence was prejudicial, and
that the district court erred by overruling his repeated objections
and by failing to articulate probative value/prejudice findings
before admitting the challenged evidence.
7
Rule 404(b) states: "Other crimes, wrongs, or acts.
Evidence of other crimes, wrongs or acts is not admissible to prove
the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, such
as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident." Fed. R.
Evid. 404(b).
8
One of the dangers inherent in the admission of "other acts"
evidence is that the jury might convict the defendant "not for the
offense charged but for the extrinsic offense." United States v.
Beechum, 582 F.2d 898, 914 (5th Cir. 1978), cert. denied, 99 S.Ct.
1244 (1979). "This danger is particularly great where, as here,
the extrinsic activity was not the subject of a conviction; the
jury may feel that the defendant should be punished for that
activity even if he is not guilty of the offense charged." Id. To
guard against this danger, Rule 404(b) excludes extrinsic offense
evidence when it is relevant solely to the issue of the defendant's
character. Even if the extrinsic act evidence is probative for
"other purposes" recognized by Rule 404(b), such as showing motive
or intent, the probative value of the evidence must be weighed
against its prejudicial impact.
The government says that Rule 404(b) is inapplicable here
because the challenged evidence--the chemicals and other indicia of
drug manufacturing--was not extrinsic. Rather, because the drug-
related items found in Ridlehuber's house are commonly found in
drug labs, those items were "inextricably linked" with the
contraband weapon. In the government's view, such evidence is
admissible to allow the jury to evaluate all of the circumstances
under which the defendant acted. In making this argument, the
government relies on a line of precedent which holds that
"[e]vidence of an uncharged offense arising out of the same
transactions as the offenses charged in the indictment is not
extrinsic evidence within the meaning of Rule 404(b), and is
9
therefore not barred by the rule." United States v. Maceo, 947
F.2d 1191, 1199 (5th Cir.), cert. denied, 112 S. Ct. 1510 (1992).
The government's reliance on this line of cases is misplaced.
In Maceo, the offense charged in the indictment was conspiracy to
import and possess cocaine with intent to distribute it. Maceo,
947 F.2d at 1193. The evidence of uncharged offenses admitted at
trial was that one of the defendants, an attorney, used cocaine
with the drug traffickers and accepted cocaine as legal fees for
services he rendered in connection with the drug conspiracy. Id.
at 1198. This "other acts" evidence was part and parcel of the
conspiracy itself. The defendant's use of cocaine with the drug
traffickers helped prove that the defendant knew about the drug
conspiracy, and the cocaine-for-legal-advice arrangement actually
advanced the conspiracy. Thus, we held that the challenged
evidence "was not extrinsic; it was 'inextricably intertwined with
the evidence used to prove the crime charged, [and] is admissible
so that the jury may evaluate all of the circumstances under which
the defendant acted.'" Id. (quoting United States v. Randall, 887
F.2d 1262, 1264 (5th Cir. 1989).8
8
The defendant in Randall negotiated by telephone the sale
of two kilograms of cocaine. Drug enforcement agents monitored and
taped the telephone transaction. Randall, 887 F.2d at 1264. The
tape, which contained admissions by the defendant of his
involvement in other crimes, was admitted in evidence and heard by
the jury. Quite literally, the evidence of uncharged offenses
arose out of the same transaction as the offense charged in the
indictment, and thus was not extrinsic evidence within the meaning
of Rule 404(b). See also United States v. Kloock, 652 F.2d 492,
495 (5th Cir. 1981) (false driver's license part of same
transaction when found in possession of defendant who attempted to
smuggle cocaine through customs).
10
The connection here between the offense charged in the
indictment and evidence of the uncharged offense is not so clear.
We cannot say, for example, that the drug-related evidence arose
out of the weapons charge. On the contrary, under the
prosecution's theory of the case the opposite was true. The
government argued that the shotgun was just a cog in the wheel of
a larger criminal enterprise: a clandestine drug lab. The problem
is that the government did not prove the existence of a drug lab--
it did not have sufficient evidence to do so. If the proof were
reversed and Ridlehuber was charged with and convicted of running
a drug lab, with the shotgun admitted over objection, the result
might be different. Under that scenario, the sawed-off shotgun--a
weapon commonly found in illegal drug labs--might fairly be
characterized as "intrinsic" evidence since possession of the gun
could be said to arise out of the same transaction as the offense
charged. Cf. United States v. Hughes, 441 F.2d 12, 20 (5th Cir.),
cert. denied, 92 S.Ct. 156 (1971) (although uncharged, guns
admissible because they were as much a part of overall
counterfeiting operation as printing press). But the government
did not charge Ridlehuber with running a drug lab and the evidence
adduced at trial did not prove the existence of a clandestine lab.
Thus, we cannot allow the prosecution's unproven drug lab theory
dictate what is and is not extrinsic of the charged offense.
Furthermore, this is not a situation in which the "other acts"
evidence falls outside of Rule 404(b)'s purview because the
11
evidence of the charged and uncharged offenses both were part of a
"single criminal episode." See, e.g., United States v. Carpenter,
963 F.2d 736, 742 (5th Cir.), cert. denied, 113 S.Ct. 355 (1992)
(where defendant hid gun and crack pipe under seat of police
cruiser, evidence that crack pipe found beside firearm not
extrinsic because both part of single criminal episode); United
States v. Torres, 685 F.2d 921, 924-25 (5th Cir. 1982) (sample
transactions not extrinsic because they "were necessary
preliminaries to the larger sale that led to defendants' arrests").
The only "criminal episode" proven here was possession of a short-
barreled shotgun. The rest is conjecture.
Having determined that the chemicals and other indicia of drug
manufacturing was extrinsic offense evidence, we must decide
whether the trial court should have excluded it. In Beechum, 582
F.2d at 911, this Court outlined a two-step test to determine the
admissibility of extrinsic evidence under Rule 404(b). Evidence of
extrinsic acts is admissible if, as required by Rule 404(b), the
evidence is relevant to an issue other than the defendant's
character, and if, as Rule 403 requires, its probative value is not
substantially outweighed by its prejudicial impact. Subsequently,
in United States v. Robinson, 700 F.2d 205, 213 (5th Cir. 1983), we
held that "an on-the-record articulation by the trial court of
Beechum's probative value/prejudice inquiry [is required] when
requested by a party."
12
The trial court did not articulate its findings on the record
with respect to the extrinsic offense evidence.9 If a request for
on-the-record findings was made, the district court's "[f]ailure to
make such findings necessitates remand 'unless the factors upon
which the probative value/prejudice evaluation were made are
readily apparent from the record, and there is no substantial
uncertainty about the correctness of the ruling." United States v.
Zabaneh, 837 F.2d 1249, 1262 (5th Cir. 1988) (quoting Robinson, 700
F.2d at 213). It is debatable whether a request for on-the-record
findings was made in this case. We need not decide that issue,
however, because application of the two-part Beechum analysis
mandates remand in any event.
Beechum requires that we first determine whether the extrinsic
offense evidence is relevant to an issue other than the defendant's
character. Beechum, 582 F.2d at 911. To make that determination,
the Court must address the threshold question of whether the
government offered sufficient proof demonstrating that the
defendant committed the alleged extrinsic offense. Id. at 913;
Zabaneh, 837 F.2d at 1262. "If the proof is insufficient, the
judge must exclude the evidence because it is irrelevant."
9
Apparently, the trial court ruled on defendant's Rule
404(b) motion at a brief, off-the-record sidebar conference that
occurred after opening statements but before the prosecution's
case-in-chief. Based on the parties' description of this sidebar
conference, the district court's ruling would not have satisfied
Robinson even if it had been on-the-record. The court did not make
any findings as to the relevancy of the drug-related evidence or
whether the probative value of the evidence was substantially
outweighed by its prejudicial effect. The court merely denied
defendant's motion after hearing counsels' arguments.
13
Beechum, 582 F.2d at 913. Rule 104(b) supplies the standard for
determining the admissibility of extrinsic offense evidence: "the
preliminary fact can be decided by the judge against the proponent
only where the jury could not reasonably find the preliminary fact
to exist." Id.
Here, the government did not prove, or attempt to prove, that
Ridlehuber's possession of the chemicals and other items, such as
thermometers, tubing, a Pyrex funnel, and rubber stoppers, was in
itself an illegal act. Rather, the government presented testimony,
through multiple witnesses, that possession of such materials is
indicative of the illegal manufacture of methamphetamine or
amphetamine. The question we must decide, therefore, is whether
the government put forth sufficient evidence to show that
Ridlehuber was operating a clandestine drug lab or assembling a lab
with the intent to manufacture methamphetamine or amphetamine. We
think not.
The evidence of illegal drug manufacture presented by the
government was quite weak. No drugs were found. Government agents
said Ridlehuber's residence smelled like a drug lab, but that
evidence alone is hardly sufficient. The chemicals found in
Ridlehuber's residence and his father's shop can be used to make
methamphetamine or amphetamine, but two precursor chemicals
necessary for the manufacture of those drugs were not found. What
is more, and what is crucial, all the chemicals had legitimate uses
in Ridlehuber, Sr.'s metal plating business. In fact, except for
three drums of monomethylamine for which he lacked the proper
14
permit, the government returned all the chemicals to Ridlehuber,
Sr. This evidence is not sufficient under Rule 104(b) to show that
Ridlehuber committed the extrinsic offense. Therefore, the trial
court should have excluded the drug-related evidence.
Even if the government's proof had satisfied Rule 104(b) and
the district court found the extrinsic offense relevant, the
evidence should have been excluded under the Rule 403 balancing
inquiry embodied in second step of the Beechum test. "[T]he
central concern of rule 403 is whether the probative value of the
evidence sought to be introduced is 'substantially outweighed by
the danger of unfair prejudice.'" Id. The drug-related evidence
was probative on the issue of motive; it explained why Ridlehuber
might have a sawed-off shotgun in his residence. Yet the shotgun
itself undercut the credibility of the prosecution's theory that
Ridlehuber possessed the gun to protect a drug lab (and thus
diluted the probative value of the "other acts" evidence). The gun
at issue cannot be cocked without a tool, such as a pen or
screwdriver--hardly the weapon of choice in a gunfight.
The danger of unfair prejudice from admission of the drug-
related evidence, by contrast, was great. The clandestine
manufacture of controlled substances like methamphetamine and
amphetamine is the kind of offense for which the jury may feel the
defendant should be punished regardless of whether he is guilty of
the charged offense. Cf. Kloock, 652 F.2d at 495 (false driver's
license "highly probative" of drug smugglers attempt to conceal his
identity while carrying false license not kind of offense likely to
15
inflame jury's passions against defendant). And this is not a case
like United States v. Aleman, 592 F.2d 881, 886 (5th Cir. 1989),
where the prejudicial effect of extrinsic offense evidence was
mitigated by the government's presentation of "substantial evidence
of [] guilt in addition to the challenged evidence." The weapons-
charge evidence here was not particularly strong mainly because the
shotgun itself was not blatantly shortened, and there was no
evidence that Ridlehuber ever handled the shotgun or inspected it
closely.10
Furthermore, the prejudicial impact of the drug-related
evidence was magnified by the prosecution's focus on that evidence.
A significant portion of the total volume of testimony heard by the
jury concerned drug manufacturing, and one witness testified
exclusively about such activity. See Zabaneh, 837 F.2d at 1265
(danger of unfair prejudice exacerbated when testimony focused on
extrinsic offense and one witness's testimony pertained entirely to
extrinsic offense). Under these circumstances, the trial court's
instructions to the jury about the limited use of the extrinsic
offense evidence was not sufficient to alleviate any unfair
prejudice that may have resulted from admission of that evidence.
Contrary to the government's assertion, United States v.
Smith, 930 F.2d 1081 (5th Cir. 1991) is not controlling here. The
defendant in Smith was convicted of illegal possession of firearms.
10
According to Ridlehuber, Sr.'s testimony, even the law
enforcement personnel who seized the shotgun were not sure that its
dimensions were illegal. On the day of the search, the officers
borrowed a tape measure from Ridlehuber, Sr. to check barrel length
and overall length of the shotgun.
16
State police seized the guns during a search of a house in which
the defendant lived. Smith, 930 F.2d at 1083. Probable cause for
the search derived from the odor of amphetamine outside the house.
Id. at 1087 n.4. During the trial defense counsel suggested to the
jury that the government had no basis to conduct the search that
led to the seizure of six guns. Id. Although it had previously
refused to admit the extrinsic offense evidence, the trial court
allowed the government to present evidence of drug dealing,
including that officers detected the odor of an amphetamine
precursor, to counter defense counsel's suggestion.
On appeal, the defendant claimed that the drug-related
testimony should have been excluded under Rule 402 and 403. We
affirmed Smith's conviction, noting that any prejudice resulting
from the drug-related evidence "was overcome by its intimate
connection with the officers' motives for obtaining warrants" to
search the premises. Id. at 1087. Since the defendant called into
question the basis for the search, we held that the extrinsic act
evidence was "necessary to inform the jury of the circumstances of
Smith's offense." Id.11 Unlike Smith, where exclusion of the
extrinsic offense evidence would have "distorted the jury's view of
the offense" charged, Id., there are no special circumstances
warranting admission of the drug-related evidence in this case.
Indeed, admission of the extrinsic offense evidence here unfairly
11
The dissent quotes liberally from Smith but fails to grapple
with this key factor supporting our conclusion in Smith that
admission of the drug evidence did not run afoul of Rule 403.
17
prejudiced defendant and compels reversal of the conviction and
remand for a new trial.
Finally, in contrast to the instant case, the circumstances
presented in United States v. Quintero, 872 F.2d 107 (5th Cir.
1989) did not warrant exclusion of the other acts evidence. There,
we upheld the trial court's admission of drug-related evidence in
affirming the defendant's conviction for possession of a firearm.
The other acts evidence in Quintero was not a major focus of the
government's case as it was here. Indeed, in Quintero, the
prosecution took pains to limit reference to the drug evidence and
made no attempt to link the defendant with the heroin found on him
and in his companion's apartment. Id. at 113. And unlike this
case, the evidence in Quintero supporting the underlying weapons
charge was "overwhelming." Id. In light of this overwhelming
proof on the weapons charge, we observed that even if the trial
judge abused his discretion by admitting the drug evidence, "such
error would be harmless . . ." Id. 113-14.
In sum, if we hold that the drug related evidence in this case
is not extrinsic, the exception to Rule 404(b) embodied in the
"inextricably intertwined" analysis will swallow the rule. This is
so considering (1) the weakness of the proof of drug offenses; (2)
the weakness of the link between the drug offenses and the
particular weapon, which was not very useful for its purported
purpose; and (3) the barely adequate proof of defendant's
possession of the weapon, which makes the impact of the drug
18
evidence so much greater. Under these circumstances, Rule 404(b)
prevents the government from bootstrapping evidence into this case.
II. JENCKS ACT
Defendant also challenges the admission of testimony from
government witnesses John Haigood, a McLennan County deputy
sheriff, and Robert Wilkerson, a sergeant investigator with the
Texas Department of Public Safety. Defendant maintains that the
testimony of these witnesses violated Fed.R.Crim.P. 16(a)(1)(C) and
the Jencks Act, 18 U.S.C. § 3500. We disagree.
First, defendant complains that Deputy Haigood was permitted
to testify that he found the AR-15 ammunition clip on the same
shelf where another officer found the sawed-off shotgun. Defense
counsel objected to Haigood's testimony because, although he had
seen the clip during discovery, he was not told where the clip was
found. Defendant, who quotes Fed.R.Crim.P. 16(a)(1)(C) without
further elaboration, asserts that the trial judge erred in
overruling the objection.12
12
Federal Rule of Criminal Procedure 16(a)(1)(C) provides:
Upon request of the defendant the government
shall permit the defendant to inspect and copy
or photograph books, papers, documents,
photographs, tangible objects, buildings or
places, or copies or portions thereof, which
are within the possession, custody or control
of the government, and which are material to
the preparation of the defendant's defense or
are intended for use by the government as
evidence in chief at the trial, or were
obtained from or belong to the defendant.
19
The disputed testimony, which consists of Haigood's
recollection of events during the search of defendant's residence,
is not subject to discovery under Rule 16(a)(1)(C). That rule
relates to discovery of documents or tangible objects, and does not
require the government to give advance notice of the expected
testimony of its witnesses. See United States v. Martinez-Mercado,
888 F.2d 1484, 1489-90 (5th Cir. 1989). Rule 16 says quite plainly
that the only witness statements subject to disclosure are those
required by the Jencks Act. Fed.R.Crim.P. 16(a)(2). The Act is
irrelevant here because Haigood did not prepare an investigative
report, nor was he required to do so. Martinez-Mercado, 888 F.2d
at 1490 (prosecution not required to create Jencks material by
demanding that its witnesses put in writing every matter about
which they intend to testify) (citations omitted).
Second, defendant protests a portion of Sergeant Investigator
Wilkerson's testimony on rebuttal, which came after defense
counsel's Jencks motion requesting the government to produce any
"statements" made by Wilkerson. In his rebuttal testimony,
Wilkerson spoke about conversations he had with defendant's father
in which Ridlehuber, Sr. said his son once had been involved with
drugs. Furthermore, Wilkerson quoted defendant's father as saying:
"there is something strange going on around here, and I'm not so
sure my son's not involved." The content of Wilkerson's
conversations with defendant's father were not memorialized in an
offense report, but the second statement was apparently recorded
verbatim in Wilkerson's field notes. It appears from the record
20
that Wilkerson had the notes with him during his testimony, and
defendant does not allege that trial counsel was prevented from
reviewing them.
Defendant contends that the prosecution's failure to produce
Wilkerson's field notes before his rebuttal testimony violates the
Jencks Act.13 The Act defines the term "statement" in relevant part
as "a written statement made by said witness and signed or approved
by him." 18 U.S.C. § 3500(e)(1). Under Martinez-Mercado, 888 F.2d
at 1490, the government was not necessarily required to have
Wilkerson memorialize his conversations with Ridlehuber, Sr. in an
offense report that is covered by the Jencks Act. More to the
point, we previously held that scattered notes taken during the
course of an investigation "do not fit within the [Jencks] Act's
purview." United States v. Ramirez, 954 F.2d 1035, 1038 (5th
Cir.), cert. denied, 112 S.Ct. 3010 (1992). Therefore, the trial
court was not required to prohibit Wilkerson's testimony.
13
The portion of the Jencks Act on which defendant relies
reads:
After a witness called by the United States
has testified on direct examination, the court
shall, on motion of the defendant, order the
United States to produce any statement (as
hereinafter defined) of the witness in the
possession of the United States which relates
to the subject matter as to which the witness
has testified. If the entire contents of any
such statement related to the subject matter
of the testimony of the witness, the court
shall order it to be delivered directly to the
defendant for his examination.
18 U.S.C. § 3500(b).
21
III. APPLICATION OF § 5861(d) TO DEFENDANT
Defendant was convicted under 28 U.S.C. § 5861(d), which makes
it unlawful for any person "to receive or possess a firearm which
is not registered to him in the National Firearms Registration and
Transfer Record." Defendant argues that his conviction under §
5861(d) violates due process guaranteed him by the Fifth Amendment
because the government would have rejected his application had he
made one since the law precludes registration of the firearm in
question. In support of this argument, defendant cites United
States v. Dalton, 960 F.2d 121 (10th Cir. 1992), and "Publication
603," a 1974 publication from the Bureau of Alcohol, Tobacco and
Firearms ("ATF").
In Dalton, the Tenth Circuit analyzed the relationship between
18 U.S.C. § 922(o), enacted in 1986 to outlaw the possession of any
machinegun after its effective date, and § 5861(d), which imposes
tax and registration obligations for certain firearms, including
machineguns. The defendant in Dalton was convicted under § 5861(d)
& (e), respectively, for possessing and transferring an
unregistered machinegun made after the effective date of § 922(o).
Id. at 122. The court held that due process barred the defendant's
conviction because § 5861(d) mandated the registration of a firearm
that the government refused to register due to the ban on
machineguns imposed by § 922(o). In other words, the court
concluded that compliance with both statutes is impossible. Id. at
122-23; contra United States v. Jones, 976 F.2d 176, 182-83 (4th
Cir.), cert. denied, 113 S.Ct. 2351 (1993).
22
Regardless of whether Dalton embodies a correct statement of
the law, it offers no help to defendant, who was convicted of
possessing a short-barreled shotgun, not a machinegun. Unlike
newer machineguns, short-barreled shotguns still may be possessed
legally if registered properly. See 18 U.S.C. §§ 921-928. Thus,
even if Dalton is correct as to the class of machineguns made
illegal by § 922(o), the Tenth Circuit's reasoning in Dalton does
not encompass short-barreled shotguns, which can be possessed
legally under federal law if registered. United States v. Aiken,
974 F.2d 446, 448-49 (4th Cir. 1992).
Without Dalton, defendant's argument rests on ATF "Publication
603," which correctly states that private citizens in possession of
unregistered firearms cannot register them.14 Under the statutory
scheme, the transferor must register the weapon in the name of the
transferee before delivery; only then may delivery occur lawfully.
United States v. Coleman, 441 F.2d 1132, 1133 (5th Cir. 1971).
Thus, it is true that a transferee may be prosecuted for possessing
an unregistered firearm even though he himself cannot comply with
the registration requirement. United Stats v. Bright, 471 F.2d
723, 726 (5th Cir.), cert. denied, 93 S.Ct. 2742 (1973); United
States v. Sedigh, 658 F.2d 1010, 1012 (5th Cir.), cert. denied, 102
14
The substance of the passage quoted in defendant's brief
reflects current ATF regulations. See 27 C.F.R. 179.84-86,
179.101(b), (f).
23
S.Ct. 1279 (1982) (statutory scheme requires that transferee not
take possession until transfer and registration approved).
According to defendant, this result offends due process.
This Court disagrees. As we explained some years ago in
United States v. Ross, 458 F.2d 1144, 1145 (5th Cir.), cert.
denied, 93 S.Ct. 167 (1972):
Section 5861(d) making possession of an
unregistered weapon unlawful is part of the
web of regulations aiding enforcement of the
transfer tax provision in [26 U.S.C.] § 5811.
Having required payment of a transfer tax and
registration as an aid in collection of that
tax, Congress under the taxing power may
reasonably impose a penalty on possession of
unregistered weapons. Such a penalty imposed
on transferees ultimately discourages the
transferor on whom the tax is levied from
transferring a firearm without paying the tax.
Through this statutory scheme, Congress encourages compliance by
rendering as contraband any firearm transferred without prior
registration, Aiken, 974 F.2d at 448, and "no transferee can
'purify' the 'tainted' weapon by registering it after transfer."
United States v. Aiken, 787 F. Supp. 106, 108 (D. Md. 1992). While
defendant may dispute the fairness or efficacy of this enforcement
mechanism, "[t]he requirement that a transferee must refuse to
accept possession of an unregistered firearm is rationally designed
to aid in the collection of taxes imposed by other provisions of
the Act." Id., aff'd, 974 F.2d 446 (5th Cir. 1992).
24
In sum, § 5861(d) is not unconstitutional as applied to
defendant.15
We REVERSE the judgment of conviction and REMAND the case to
the District Court.
EMILIO M. GARZA, Circuit Judge, dissenting:
The majority holds that, in a prosecution for possession of an
unregistered short-barrel shotgun in violation of 26 U.S.C.
§ 5861(d), "chemicals and other indicia of drug manufacturing16
15
In addition to asserting a sufficiency of the evidence
challenge, Ridlehuber claims his trial counsel failed to provide
him constitutionally effective assistance and that the court
misapplied the sentencing guidelines. Having decided to remand for
a new trial, we need not address these issues.
16
During the search of a house leased by Harold
Ridlehuber, Sr., for the use of his son, the defendant,
officers found a short-barreled Stevens Savage 20-gauge
shotgun resting on an open shelf in the kitchen. Next
to the shotgun, the officers found an ammunition clip
for a Colt AR-15 rifle. In another part of the house
the officers found a Mossberg 20-gauge shotgun of legal
length standing upright against a wall quite near a
door, two more AR-15 clips and a box of 20-gauge shells.
A few 20-gauge casings were found ont he driveway. In
addition to the weapons, the officers found the
following: a drum containing 230 pounds of sulfuric
acid, two gallons of ether, a can of ether starting
fluid, a pan containing aluminum shavings, a hot plate,
tubing, a Pyrex funnel, thermometers, and rubber
stoppers.
Search warrants were also executed at Ridlehuber, Sr.'s
home and at his place of business, a Hillsboro metal
plating shop where defendant worked with his father. In
Ridlehuber, Sr.'s house was a Colt AR-15 rifle and
magazines, which Ridlehuber, Sr. said belonged to his
son. At the business office, agents seized numerous
chemicals including phenylacetonitrile, ethyl acetate,
sodium hydroxide, monomethylamine, ether, muriatic acid,
acetone, and reagent alcohol. In defendant's truck,
parked at his father's office, was a loaded .45 caliber
pistol.
Slip op. at 2.
25
[obtained pursuant to lawful search warrants] was extrinsic offense
evidence" under Rule 404(b) of the Federal Rules of Evidence, slip
op. at 12, and concludes that "admission of th[is] extrinsic
offense evidence . . . unfairly prejudice[d] defendant and compels
reversal of the conviction and remand for a new trial." Id. at
17-18. Because our circuit's well-established jurisprudence
supports the opposite conclusion))that such evidence is not
extrinsic evidence under Rule 404(b), but rather intrinsic
circumstantial evidence of knowledge and possession of the
shotgun))I respectfully dissent.
Harold Ridlehuber, Jr. was convicted of possession of an
unregistered short-barreled shotgun, in violation of 26 U.S.C.
§ 5861(d). Section 5861(d) requires that certain firearms,17
including short-barreled shotguns, be registered in the National
Firearms Registration and Transfer Act.18 See 26 U.S.C. §§ 5845,
5861(d). Under this statutory scheme, the transferor must register
the weapon in the name of the transferee before delivery; only
after registration may delivery occur lawfully. See United States
v. Coleman, 441 F.2d 1132, 1133 (5th Cir. 1971).
The statute makes it unlawful for any person
17
Section 5845 states:
For the purpose of this chapter))
(a) Firearm.))The term "firearm" means . . . ; (2) a weapon made
from a shotgun if such weapon as modified has an overall length of
less than 26 inches or a barrel or barrels of less than 18 inches in
length.
18
Section 5861 states:
It shall be unlawful for any person))
. . . .
(d) to receive or possess a firearm which is not registered to him
in the National Firearms Registration and Transfer Record[.]
"to receive or possess a firearm which is not
registered to him." 26 U.S.C. § 5861(d). The
"only knowledge required to be proved [is]
that the instrument . . . was a firearm."
[United States v.] Freed, 401 U.S. [601,] 607,
91 S. Ct. [1112,] 1117 [(1971)]. Similarly,
to establish an unlawful transfer, 26 U.S.C.
§ 5861(e), mere knowledge that the instrument
was a firearm is sufficient. It is not
necessary in either case that the charged
party know that his reception, possession, or
transfer of the firearm violated the Act.
United States v. Moschetta, 673 F.2d 96, 100 (5th Cir. 1982).19 "As
used in the Act, the word `firearms' is a term of art that includes
primarily weapons thought to be of a military nature and of no
legitimate use for sport or self-defense." United States v.
Anderson, 885 F.2d 1248, 1250 (5th Cir. 1989) (en banc). Although
the Act requires no specific intent or knowledge that a firearm was
unregistered, see Freed, 401 U.S. at 607, 91 S. Ct. at 1117, "we
[have] concluded that a conviction should require that the charged
party kn[o]w it was a `firearm' in the Act sense, not that he (or
19
The district court correctly instructed the jury:
For you to find the defendant guilty of this crime, you must be
convinced that the government has proved each of the following
beyond a reasonable doubt:
First : That the defendant knew he had the gun described in the
indictment in his possession;
Second: That the guns [sic] was a weapon made from a shotgun and
had an overall length of less than 26 inches or a barrel
of less than 18 inches in length;
Third: That the defendant knew of the characteristics of the
gun, e.g. that the weapon was a shotgun having an
overall length of less than 26 inches or a barrel of
less than 18 inches in length;
Fourth: That this gun was or could readily have been put in
operating condition; and
Fifth: That this gun was not registered to the defendant in the
National Firearms Registration and Transfer Record. It
does not matter whether the defendant knew that the gun
had to be registered."
Record on Appeal at 109; see also 5th Circuit Pattern Jury Instructions 199
(Criminal Cases) (1990).
-27-
27
she) merely kn[o]w it was a firearm [in the ordinary sense]."
Anderson, 885 F.2d at 1251. In establishing this limited mens rea,
we recognized that in most cases knowing possession of a "firearm"
in the Act sense will be provable if it exists because "a jury can
ordinarily infer knowledge of their nature from the possession of
such illegal items and the surrounding circumstances." Id. at 1255
n.13. The majority excludes any inference of knowledge or
possession "from . . . the surrounding circumstances."
Rule 402 is the "baseline" of the Federal Rules of Evidence.
See Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786,
2793 (1993). "All relevant evidence is admissible, except as
otherwise provided by the Constitution of the United States, by act
of Congress, by these rules, or by other rules prescribed by the
Supreme Court pursuant to statutory authority. Evidence which is
not relevant is not admissible." Fed. R. Evid. 402. Rule 401
defines "relevant evidence" as "evidence having any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it
would be without the evidence." Fed. R. Evid. 401. "The rule's
basic standard of relevance thus is a liberal one." Daubert, 113
S. Ct. at 2794.
In United States v. Smith, 930 F.2d 1081 (5th Cir. 1991), a
case extremely similar to the facts here, we held that a district
court's decision to admit drug-related evidence where the defendant
was charged with federal firearms violations did not run afoul of
Rules 402 or 403 of the Federal Rules of Evidence. Id. at 1087.
-28-
28
As in the instant case, a house occupied by Smith was searched
pursuant to a search warrant for drugs.
The odor of amphetamine permeated the house, and six
guns, four of them loaded, were recovered from various
rooms. Glassware and condenser tubes known to be used in
the manufacture of amphetamine were stashed in an
upstairs closet and later determined to bear the
fingerprints of both the defendant and Randy Smith.
Id. at 1083-84.20 "[A] federal grand jury returned a three count
indictment charging the defendant with federal arms violations."21
Id. at 1084. Smith claimed that drug-related testimony should have
been excluded as irrelevant under Fed. R. Evid. 402 or as unfairly
prejudicial under Rule 403. Id. at 1087. We held, however, that
the district court's decision to admit this evidence "did not run
afoul of Rule 402." Id.
Evidence of drug dealing was undoubtedly relevant here.
In this Circuit, the jury is permitted to view and
consider the entire circumstances surrounding an alleged
offense. Thus, in United States v. Randall, 887 F.2d
1265 (5th Cir. 1989), the defendant was charged with
carrying a firearm during cocaine trafficking. Yet this
court held that evidence regarding marijuana dealing was
admissible, because evidence which is "inextricably
intertwined with . . . evidence used to prove the crime
charge is admissible so that the jury may evaluate all of
the circumstances under which the defendant acted. Id.
at 1268; see also United States v. Sepulveda, 710 F.2d
188, 189 (5th Cir. 1983).
Id. (emphasis added).
As the majority acknowledges, the drug-related evidence found
in Ridlehuber's house was relevant "to provide an explanation for
20
Compare supra n.1.
21
Smith was charged as a felon in possession of a firearm, in violation
of 18 U.S.C. § 922(g)(1), and was subject to a sentence enhancement pursuant to
18 U.S.C. § 1924(e)(1) because he had previously been convicted of three violent
felonies or serious drug offenses.
-29-
29
why the gun was in the house." Slip op. at 3. The challenged
evidence served exactly this purpose, as "[t]he evidence relating
to drugs provided a motive for the defendant's possession of the
shotgun." Id. This is particularly true given our recognition
that guns are "tools of the trade." United States v. Goff, 847
F.2d 149, 175 (5th Cir.) (attribution omitted), cert. denied, 488
U.S. 932, 109 S. Ct. 324, 102 L. Ed. 2d 341 (1988).
Although it acknowledges the relevance of the drug-related
evidence, the majority holds that such evidence constituted
extrinsic offense evidence under Fed. R. Evid. 404(b). Rather than
citing authority to support its holding, the majority distinguishes
the instant case from cases such as United States v. Maceo, 947
F.2d 1191 (5th Cir. 1992), where we held that "[e]vidence of an
uncharged offense arising out of the same transactions as the
offenses charged in the indictment is not extrinsic evidence within
the meaning of Rule 404(b), and is not therefore barred by the
rule." Id. at 1199. Based on this language in Maceo, the majority
would limit the term "intrinsic" to offenses which "ar[i]se out of
the [charged offense]." Such analysis is legally unconvincing and
has no support in our prior jurisprudence.
In United States v. Quintero, 872 F.2d 107, 108 (5th Cir.
1989), cert. denied, 110 S. Ct. 2586 (1990), law enforcement
officials obtained a search warrant pursuant to the defendant's
arrest for possession of heroin, and upon searching the apartment,
found heroin, drug paraphernalia, and two rifles. The defendant
was indicted on two separate counts for being a three-time
-30-
30
convicted felon in possession of a firearm, in violation of 18
U.S.C. §§ 922(g)(1), 924(e)(1). See id. at 113. In upholding the
trial court's evidentiary ruling allowing the drug-related evidence
at trial, we did not inquire whether the drug-related evidence
"arose out of" of the weapons charges. We instead recognized that
the trial court did not abuse its discretion in admitting the
evidence where "the officer's search for heroin was part and parcel
of the general description of events leading to [the defendant's]
arrest and the discovery of the weapons." Id. We therefore found
the drug-related evidence to be "inextricably intertwined with the
offense charged," even though the drug-related evidence did not
"arise out of" the weapons charges. Id.
Accordingly, I would hold that the drug-related evidence here
was not extrinsic offense evidence under Rule 404(b).
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31