UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 96-40508
__________________
United States of America,
Plaintiff-Appellee,
versus
Ricky J. Shugart,
Defendant-Appellant.
______________________________________________
Appeal from the United States District Court for the
Eastern District of Texas
______________________________________________
July 14, 1997
Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:
The appellant, Ricky Joe Shugart, challenges his conviction
and sentence for manufacturing methcathinone in violation of 21
U.S.C. § 841(a)(1) and possessing ephedrine with the intent to
manufacture methcathinone in violation of 21 U.S.C. § 841(d)(1).
We conclude that the good-faith exception to the exclusionary rule
defeats Shugart’s arguments that evidence of methcathinone
production secured pursuant to search warrants was erroneously
admitted into evidence. We also hold that evidence found on
Shugart’s person when he was arrested was properly admitted into
evidence as fruits of a lawful search incident to an arrest.
Moreover, we conclude that the district court did not abuse its
discretion by admitting other challenged evidence or by declining
to grant Shugart’s motion for a new trial based on newly discovered
evidence. Finally, we conclude that the district court committed
no error in calculating Shugart’s sentence. Accordingly, the
judgment of the district court is affirmed in all respects.
I. Background
United States Drug Enforcement Agency (“DEA”) agents began
investigating the alleged narcotics activity of Shugart and his
sister, Lori Ann Leach, when Agent Michael Keene received a tip
that Shugart and Leach were involved in the illegal production of
methcathinone. The tip was provided by a DEA agent in Wichita,
Kansas, who told Agent Keene that a confidential informant (“CI”)
in Kansas told him that Shugart was in possession of a “N-
Methcathinone laboratory.” The CI also alleged that Shugart was
ordering ephedrine, a substance needed to produce methcathinone,
from Olympus Distributing Company (“Olympus”) and T&M Distributing
Company (“T&M”), and that Shugart occasionally directed Leach to
order the ephedrine.1 The CI also stated that he had been on
Shugart’s and Leach’s properties near Bonham, Texas, in the month
preceding the tip, and had observed a methcathinone laboratory on
Shugart’s property, and other chemicals used to produce
methcathinone on Leach’s property.
1
It is undisputed that ephedrine has lawful uses as an appetite
suppressant and that it is not illegal to order the drug from mail-
order houses.
2
Before taking further action, Agent Keene sought to verify the
information provided by the CI. In this regard, Agent Keene
contacted T&M and asked whether Shugart or Leach had ordered
ephedrine. A representative of T&M told Agent Keene that Shugart
and Leach had recently placed several large orders for ephedrine
that were shipped to Bonham, Texas.
On November 8, 1994, a T&M representative phoned Agent Keene
and informed him that Shugart had recently placed an order for
3,000 tablets of ephedrine to be sent to a post office box in
Randolph, Texas. Agent Keene confirmed this information by
contacting a postal inspector who stated that a package from T&M
addressed to Shugart had arrived at the Randolph post office. The
postal inspector also told Agent Keene that another package
addressed to Shugart had arrived from Olympus. Both packages were
mailed collect on delivery, requiring Shugart to pay for the
packages before receiving them.
DEA agents and United States Postal Inspectors established
surveillance of the Randolph post office. At approximately 10:00
a.m. on November 14, 1994, Shugart and a woman, later identified as
his wife, arrived at the post office. Shugart entered the post
office and paid for the package from Olympus. Shugart told a
postal inspector that he had only enough money to pay for one of
the packages and that he would return later for the package from
T&M. Shugart then returned to the car, and the agents followed him
and his wife to Leach’s mobile home, located in a rural area near
Bonham, Texas. Once there, Shugart exited the car and carried the
3
package inside the mobile home. His wife, still followed by DEA
agents, then drove to a grocery store in Bonham, Texas, where a DEA
agent watched her purchase Red Devil Lye and Epsom Salt, which are
also ingredients necessary to produce methcathinone. The agents
continued to tail Shugart’s wife on the return trip to Leach’s
mobile home.
While conducting this surveillance, Agent Keene called the CI
in Kansas on a cellular phone. The CI stated that he had aided
Shugart in manufacturing methcathinone on Shugart’s property on two
separate occasions in August 1994. The CI also told Agent Keene
that he had observed methcathinone, ephedrine, and other chemicals
used to produce methcathinone on Leach’s property in August 1994.
Based on the DEA’s surveillance and his conversation with the
CI, Agent Keene decided to apply for warrants to search Shugart’s
and Leach’s properties. At approximately 2:00 p.m. the same day,
Agent Keene hastily drafted an affidavit incorporating the above
facts and presented it to a magistrate judge in Sherman, Texas.
Before presenting the applications and affidavit for the
search warrants to the magistrate, however, Agent Keene noticed
that the applications and warrant forms contained several defects.
Apparently, the agent who prepared the documents utilized
boilerplate forms that had previously been used to acquire a
warrant authorizing a search for evidence of possession with the
intent to distribute cocaine. Both the applications for the search
warrants and the warrants themselves referred to “cocaine” rather
than “methcathinone.”
4
Agent Keene brought the mistakes to the magistrate’s
attention, and the magistrate instructed him to mark through the
references to “cocaine,” insert “methcathinone,” and initial the
hand-written changes. Agent Keene complied with these
instructions, and the magistrate signed the warrants containing
Agent Keene’s interlineations.
Agent Keene and the Assistant United States Attorney assigned
to the case failed to detect the same mistake on a form entitled
“Application and Affidavit for Search Warrant,” which served as a
cover sheet for Agent Keene’s affidavit in support of the warrants.
On that document, the items to be searched for and seized were
described as “evidence, instrumentalities or fruits of the crime of
conspiracy to possess or distribute cocaine.”
After the warrants were issued, Agent Keene returned to
Bonham, Texas, and briefed the DEA raid team that was to execute
the warrants. The agents discussed the facts leading to the
acquisition of the search warrants, as well as the fact that
Shugart had a previous weapons conviction. The agents determined
that they would raid Leach’s mobile home and an unattached, open-
faced garage adjacent to the mobile home simultaneously because
agents had observed a person in the garage and were concerned that
he or she might pose a safety risk to the agents.
The agents who raided the garage found Shugart standing near
the center of the structure in close proximity to a work bench,
which contained glass laboratory equipment, bottles of various
substances, and several electric hand mixers, one of which was
5
gyrating intermittently as if there was a short in its power
source. DEA agent Martin Suell, the first agent to enter the
garage, identified himself and commanded Shugart to lie on the
floor. After Shugart complied with this order, he was handcuffed
by another agent. The agents frisked Shugart and found numerous
“plastic baggies” in his coat pocket, which were ultimately seized.
The agent then read Shugart his Miranda rights. Chemists were
called to Leach’s property, and they and the DEA agents processed
the scene. Agents subsequently seized several containers
containing liquid substances, measuring cups, funnels, an empty
ephedrine bottle, and various other substances and laboratory
equipment from the garage.
At some point during these events, DEA agents transported
Shugart to his nearby mobile home and executed the second search
warrant issued by the magistrate. Assorted chemistry magazines,
literature on clandestine labs, and a letter were found and seized
from Shugart’s property.
Although Shugart was readily available, DEA agents asked
Shugart’s wife if she would accompany them to the Randolph post
office and sign for the the package of ephedrine sent from T&M to
her husband. Shugart’s wife agreed, and with her help, agents
seized the package from the post office. Subsequently, Shugart’s
wife signed a consent-to-search form authorizing the agents to open
the package. When the agents opened the package, they found 3,000
6
ephedrine tablets.2
A federal grand jury returned a three-count indictment against
Shugart. Count one charged him with conspiracy to manufacture
methcathinone in violation of 21 U.S.C. § 846. Count two charged
Shugart with manufacturing methcathinone in violation of 21 U.S.C.
§ 841(a)(1). Finally, count three charged Shugart with possession
of a listed chemical, ephedrine, with intent to manufacture
methcathinone in violation of 21 U.S.C. § 841(d)(1).
A jury trial was conducted on May 16, 1995.3 The jury found
Shugart guilty of manufacturing methcathinone. In addition, the
jury found Shugart guilty of the necessary included offense of
attempting to manufacture methcathinone. Finally, the jury found
Shugart guilty of possession of ephedrine with the intent to
manufacture methcathinone.
Shugart’s presentence report (“PSI”) recommended a base
offense level of 26 under the applicable Sentencing Guidelines.
This recommendation was based on a probation officer’s estimate of
the amount of methcathinone that Shugart attempted to produce. To
make this calculation, the probation officer estimated the amount
2
The district court excluded this evidence from trial. The court
concluded that the government failed to carry its burden of showing
that the search of the package from T&M was justified by consent
and that a warrantless search of the package was, therefore, in
violation of the Fourth Amendment.
3
The district court granted Leach’s motion to suppress the
evidence found during a search of her mobile home, as well as
incriminating statements that she made during that search, based on
violations of the federal “knock and announce” statute. See 18
U.S.C. § 3109. The government subsequently dismissed all charges
against Leach and the conspiracy count against Shugart.
7
of methcathinone that could be produced from the amount of
ephedrine that Shugart ordered, assuming a 50% yield.
The district court rejected the 50% yield rate suggested by
the PSI and found that a yield rate of 27% was more reasonable.
Thus, the district court found that the 39,000 ephedrine tablets
ordered by Shugart would produce 263.25 grams of methcathinone. In
light of this calculation and Shugart’s criminal history category
of VI, the district court identified a sentencing range of 120-150
months. The district court then sentenced Shugart to 120 months
incarceration on both counts of conviction, to run concurrently,
followed by three years of supervision.
On December 8, 1995, Shugart filed a motion for a new trial,
arguing that the government failed to disclose exculpatory
evidence. On April 11, 1996, the district court concluded that the
subject evidence was not material and denied Shugart’s motion for
a new trial. Shugart timely filed his notice of appeal, and this
appeal followed.
II. Search and Seizure
A. Probable Cause to Search
Shugart argues that Agent Keene’s affidavit in support of the
search warrants failed to establish probable cause to believe that
evidence of a crime would be found on Shugart’s or Leach’s
property. Specifically, Shugart claims that the affidavit failed
to establish probable cause because it relied on information
provided by an untrustworthy confidential informant and because it
contained material errors, namely references to “cocaine” rather
8
than “methcathinone.” Therefore, Shugart contends that the
evidence seized as a result of the searches should have been
excluded from evidence and that the district court’s denial of his
suppression motion constituted reversible error.4
This court reviews conclusions of law regarding the
sufficiency of a warrant de novo. United States v. Richardson, 943
F.2d 547, 549 (5th Cir. 1991). Our review involves a two-step
process, whereby we must first determine whether the good-faith
exception to the exclusionary rule applies. See United States v.
Leon, 468 U.S. 897, 922-23, 104 S. Ct. 3405, 82 L.Ed.2d 677 (1984);
United States v. Satterwhite, 980 F.2d 317, 320 (5th Cir. 1992).
Only if a novel legal question is presented or the good-faith
exception does not apply must we then “ensure that the magistrate
had a substantial basis for concluding that probable cause
existed.”5 Illinois v. Gates, 462 U.S. 213, 238-39, 103 S. Ct.
2317, 76 L.Ed.2d 527 (1983) (internal quotations omitted); see also
United States v. Pena-Rodriguez, 110 F.3d 1120, 1130 & n.10 (5th
Cir. 1997).
4
The government argued in the district court that Shugart lacked
standing to challenge the legality of the search of his sister’s
garage. The district court concluded that resolution of the
standing issue was unnecessary, given its ultimate conclusion that
the search warrant was supported by probable cause. We similarly
decline to reach the standing issue based on our conclusion that
the good-faith exception to the exclusionary rule applies. Cf.
United States v. Blocker, 104 F.3d 720, 725 n.3 (5th Cir. 1997).
5
This case does not present a novel question of law. See
Satterwhite, 980 F.2d at 320 (recognizing that “whether, on the
particular facts of [a] case, the affidavit supporting the search
warrant established probable cause to search” was not a novel
question of law).
9
The good-faith exception to the exclusionary rule provides
“that evidence obtained by law enforcement officials acting in
objectively reasonable good-faith reliance upon a search warrant is
admissible in the prosecution’s case-in-chief, even though the
affidavit on which the warrant was based was insufficient to
establish probable cause.” United States v. Craig, 861 F.2d 818,
821 (5th Cir. 1988) (citing Leon, 468 U.S. at 922-23). “Issuance
of a warrant by a magistrate normally suffices to establish good
faith on the part of law enforcement officers who conduct a search
pursuant to the warrant.” Id. Nonetheless, the officers’ good
faith cannot be established, for example, when a warrant is “based
on an affidavit so lacking in indicia of probable cause as to
render official belief in its existence entirely unreasonable.”
Leon, 468 U.S. at 923.
Agent Keene’s affidavit provided sufficient “indicia of
probable cause” for reasonable law enforcement officers to believe
that the procured warrants were valid. The affidavit related
information from the CI that strongly suggested that Shugart was
involved with methcathinone production. For example, the informant
was aware that Shugart and Leach had ordered large amounts of
ephedrine, an essential ingredient used to manufacture
methcathinone. In addition, the CI had observed a “methcathinone
laboratory” on Shugart’s property in the recent past. The CI had
also witnessed Shugart manufacturing methcathinone on two prior
occasions. Finally, the CI had observed methcathinone and other
chemicals used to manufacture the drug on Leach’s property.
10
The government, however, did not rely exclusively on the CI’s
uncorroborated allegations when it sought the warrants to search
Shugart’s and Leach’s properties. Instead, DEA agents verified
much of the information provided by the CI through their
independent investigation of Shugart’s activities. For example,
the agents determined that Shugart and Leach had ordered ephedrine
from the same companies referenced by the CI. Moreover, on the day
of the search, the agents observed several key ingredients used in
the production of methcathinone, including ephedrine, being brought
to Leach’s mobile home.
Thus, the CI’s reliability in this case was strengthened by
the DEA’s independent investigation, which corroborated important
aspects of the information provided by the informant. See United
States v. Broussard, 987 F.2d 215, 221-22 (5th Cir. 1993),
overruled on other grounds sub nom., J.E.B. v. Alabama ex rel T.B.,
511 U.S. 127, 114 S. Ct. 1419, 128 L.Ed.2d 89 (1994) (holding that
information supplied by a confidential informant, which was
corroborated by other evidence, supported a magistrate’s finding of
probable cause, despite a lack of evidence regarding the
informant’s reliability or veracity). Moreover, the reliability of
the CI’s information was enhanced by the fact that his statements
were inculpatory and could potentially subject him to criminal
sanctions. See United States v. McKeever, 5 F.3d 863, 865 (5th
Cir. 1993) (“The fact that the CI’s statements were against his own
penal interest amounts to substantial corroboration”). Under these
circumstances, we believe that a reasonable officer could easily
11
have concluded that Agent Keene’s affidavit contained probable
cause sufficient to justify issuance of the subject warrants.
The technical errors in the applications for the search
warrants do not undermine this conclusion. Agent Keene pointed out
the errors to the magistrate and corrected the majority of them
pursuant to the magistrate’s instructions. It is undisputed that
any errors that remained were the result of an oversight by both
Agent Keene and the magistrate. Under these circumstances, we
believe that the good-faith exception applies, and the district
court did not err in denying Shugart’s motion to suppress.
B. Sufficient Particularity
Shugart argues that the challenged search warrants failed to
authorize the seizure of evidence of drug manufacturing. Instead,
the search warrants contained boilerplate provisions obviously
intended for use in cases involving possession with the intent to
distribute narcotics. Nonetheless, the agents searched for and
seized evidence related to methcathinone production. Thus, Shugart
argues that the warrants did not describe with sufficient
particularity the things to be seized and that evidence of drug
manufacturing obtained during the searches should have been
excluded from trial. Shugart contends that the district court’s
failure to exclude such evidence constituted reversible error.
The Fourth Amendment requires a search warrant to describe
with sufficient particularity the items to be seized. See U.S.
CONST. amend. IV (stating that a warrant must “particularly
describ[e] the place to be searched and the persons or things to be
12
seized”). The applicable test requires this court to ask whether
“the description in the warrant would permit an executing officer
to reasonably know what items are to be seized.” United States v.
Beaumont, 972 F.2d 553, 560 (5th Cir. 1992), cert. denied, 508 U.S.
926, 113 S. Ct. 2384, 124 L.Ed.2d 288 (1993). In addition, this
court has held that the particularity requirement may be satisfied
“by reliance on an affidavit when the affidavit is incorporated by
reference into the warrant.” Id. at 561; but cf. United States v.
Haydel, 649 F.2d 1152, 1157 (5th Cir. Unit A 1981), cert. denied,
455 U.S. 1022, 102 S. Ct. 1721, 72 L.Ed.2d 140 (1982) (“An
insufficient warrant cannot be cured by the most detailed
affidavit”).
Although Agent Keene’s affidavit made clear that the DEA was
seeking a warrant to search for evidence of methcathinone
production, the search warrants did not mention drug manufacturing
or incorporate Agent Keene’s affidavit. Instead, the warrants
authorized the government to seize the property “described on the
attached Exhibit ‘B.’”6 The only terms in that exhibit, however,
that could arguably have encompassed evidence of drug manufacturing
6
Exhibit B provided the following list of items to be seized:
N-Methcathinone, currency, scales, travel records, receipts, copies
of cashier checks, copies of money orders, checking account records,
notes, correspondence, customer lists, ledgers, bank safety deposit
box records, address/telephone lists or books, photographs, jewelry,
titles, deeds, stock certificates, guns, telephone pagers, radio
scanners, computers and accessories, and other items evidencing the
importation, purchase, and/or distribution of methcathinone and the
obtaining, secreting, transfer, and/or concealment of assets and/or
money, which are fruits, evidence, and instrumentalities related to
violation of Title 21, United States Code, Sections 841(a)(1), 846,
and 848.
13
were also so broad as to constitute the type of general warrant
that has “long been abhorred in the jurisprudence of both England
and the United States.” Beaumont, 972 F.2d at 560. Thus, the
warrants in the instant case were insufficient to satisfy the
particularity requirement of the Fourth Amendment. Unless the
good-faith exception to the exclusionary rule applies, the district
court erred by denying Shugart’s motion to suppress.
On the same day that the Supreme Court decided Leon, it also
issued its opinion in Massachusetts v. Sheppard, 468 U.S. 981, 104
S. Ct. 3424, 82 L.Ed.2d 737 (1984). In Sheppard, the defendant
argued that a warrant authorizing a search for “controlled
substances” violated the Fourth Amendment’s particularity
requirement. Id. at 987. The challenged warrant was accompanied
by a detailed affidavit, which indicated that the search was for
items related to a homicide investigation. Id. at 985. It was
undisputed that the issuing magistrate and the executing officers
knew the contents of the affidavit and the focus of the search.
Relying on Leon, the Court noted that the only issue before it was
“whether the officers reasonably believed that the search they
conducted was authorized by a valid warrant.” Id. at 988. Because
the officers’ subjective belief in the validity of the warrant was
uncontested, the Court explained that the only remaining issue was
“whether there was an objectively reasonable basis for the
officers’ mistaken belief.” Id. The Court concluded that the
officers’ good-faith reliance on the warrant was objectively
reasonable because the affidavit had been approved by the U.S.
14
Attorney, the issuing magistrate had made a probable-cause
determination, and the warrant would have been valid on its face
with only minor corrections.7 Id. at 989.
In United States v. Beaumont, 972 F.2d at 562, this court
applied the good-faith exception to uphold the admissibility of
evidence seized during a search, despite the fact that the warrant
authorizing the search failed the particularity requirement. The
court relied on Sheppard and concluded that the officers’ good-
faith reliance on the warrant was objectively reasonable because
“there was a probable cause determination made by [a] judge, the
affidavit provided specific information of the objects of the
search, the executing officer was the affiant, the additional
officers making the search knew what was to be searched for, and,
finally, the warrant could easily have been made valid by the
insertion of the phrase ‘see attached affidavit.’” Id. Because
the instant case is indistinguishable from Beaumont, the good-faith
exception applies, and the district court did not err in denying
Shugart’s motion to suppress.
C. Probable Cause to Arrest
Shugart argues that the district court erred by admitting
“plastic baggies” and a receipt from an ephedrine manufacturer into
evidence. This evidence was found in Shugart’s pockets when DEA
agents conducted a search of his person shortly after entering
7
In this regard, the Court observed that “if the judge had
crossed out the reference to controlled substances, written ‘see
attached affidavit’ on the form, and attached the affidavit to the
warrant, the warrant would have been valid.” Id. at 985 n.7
(internal citations omitted).
15
Leach’s garage pursuant to a search warrant. Shugart contends that
the search of his person violated his fourth amendment rights
because it was conducted before the agents had probable cause to
arrest him. In contrast, the government argues that Shugart’s
arrest was supported by probable cause and that the subsequent
search of his external clothing was justified as a search incident
to a lawful arrest.
The Fourth Amendment requires that a warrantless arrest be
based upon probable cause. United States v. Levine, 80 F.3d 129,
132 (5th Cir.), cert. denied, — U.S. —, 117 S. Ct. 83, 136 L.Ed.2d
40 (1996). Thus, in determining whether to suppress the subject
evidence, the pertinent inquiry is whether the agents had probable
cause to arrest Shugart. “Probable cause exists when the totality
of the facts and circumstances within a [law enforcement] officer’s
knowledge at the moment of arrest are sufficient for a reasonable
person to conclude that the suspect had committed or was committing
an offense.” Id.
At the time the DEA agents entered Leach’s garage, they were
aware that Shugart had retrieved a package containing ephedrine, an
essential ingredient in methcathinone production, and brought it to
the mobile home. They also knew that other chemicals used to
produce methcathinone had been brought to the mobile home.
Moreover, the agents had been informed by the CI that Shugart was
in possession of a methcathinone laboratory, had manufactured
methcathinone in the past, and was ordering ephedrine to use in the
manufacturing process. Notably, when the agents entered the
16
garage, they observed Shugart in close proximity to an array of
laboratory equipment and several vessels containing liquid
substances. A hand mixer appeared to have been recently used, as
it was gyrating intermittently.
Based on these facts, the agents had probable cause to believe
that Shugart had been or was in the process of manufacturing
methcathinone when they found and arrested him in the garage. The
subsequent search of Shugart’s clothing was justified, in turn, as
a search incident to his lawful arrest. See, e.g., United States
v. McFarland, 633 F.2d 427, 429 (5th Cir. 1980) (“The purpose of
the doctrine permitting searches incident to arrest is to allow
discovery and preservation of destructible evidence ....”) (citing
Chimel v. California, 395 U.S. 752, 762-63, 89 S. Ct. 2034, 23
L.Ed.2d 685 (1969)). The district court, therefore, did not err in
denying Shugart’s motion to suppress the evidence found in his
pockets during his arrest.
III. Evidentiary Issues
A. Photographs
Shugart argues that photographs of laboratory equipment and
chemicals found in the search of Leach’s garage were improperly
admitted into evidence. Shugart claims that the agents rearranged
the evidence before the photographs were taken and thereby conveyed
a false impression of the crime to the jury. In response, the
government argues that movement of the items depicted in the
photographs went to the photographs’ weight, not to their
admissibility.
17
Decisions regarding the admissibility of evidence are reviewed
for an abuse of discretion. See, e.g., United States v. Carillo,
20 F.3d 617, 620 (5th Cir.), cert. denied, 513 U.S. 901, 115 S. Ct.
261, 130 L.Ed.2d 181 (1994). Even if an abuse of discretion
occurred, this court must determine “whether the error was harmless
or whether the error requires reversal because, when viewed in the
light of the entire record, it affected the substantial rights of
the defendants.” United States v. Humphrey, 104 F.3d 65, 70 (5th
Cir.), cert. denied, — S. Ct. —, 1997 WL 195218 (May 19, 1997).
The district court did not abuse its discretion by admitting
the challenged photographs into evidence. The photographs were
offered for the purpose of showing the jury the laboratory
equipment and chemicals found at the scene of the crime, not to
demonstrate precisely what the crime scene looked like. In this
regard, the government agents who testified at trial freely
disclosed that they moved the evidence prior to photographing it
and that the photographs did not accurately depict the scene of the
crime.
B. Business Records
Shugart argues that the district court erred in admitting the
business records of two ephedrine distributors into evidence.
These records consisted of order forms filled out by employees of
the distributors. The order forms indicated that calls were made
from numbers assigned to Shugart’s parents and sister to the
ephedrine distributors and that, as a result, the distributors
shipped orders of ephedrine to Leach’s address and Shugart’s post
18
office box. Shugart argues that the business records were
inadmissible double hearsay.
At trial, the parties stipulated that the order forms
constituted business records of T&M and Olympus. This stipulation
also provided that the names given by callers to the businesses
would be redacted from the records. Although Shugart contends that
any information provided by the callers constituted inadmissible
double hearsay,8 we believe that such information was not hearsay
at all. The challenged business records were not offered to prove
that factual matters asserted by the callers were true. Instead,
the business records were offered to prove that the callers
provided certain information to the distributors and that orders
were shipped to certain addresses as a result. Because the
information provided by the callers was not hearsay, the district
court did not abuse its discretion by admitting the subject
business records into evidence.
IV. Motion for a New Trial
After his conviction, Shugart moved for a new trial, arguing
that the government failed to disclose exculpatory evidence in
violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10
L.Ed.2d 215 (1963). Shugart claimed that the government failed to
disclose the affidavit of Troy Derby, a special agent for the DEA.
Agent Derby’s affidavit contained statements made by William
Killion, the confidential informant in this case, after he was
8
Specifically, Shugart contends that information provided by the
caller regarding his or her name, address, phone number, and
desired product was inadmissible hearsay.
19
arrested in Kansas for manufacturing methcathinone. In his
statements, Killion admitted that he was engaged in methcathinone
production with a woman named Carolyn Braddy, who allegedly ordered
the necessary chemicals and provided her residence as a place to
manufacture the drug.
Shugart argued that Killion’s statements were consistent with
his defense at trial, which attempted to prove that Killion was
solely responsible for ordering ephedrine and manufacturing
methcathinone.9 Shugart claimed that just as Killion falsely
accused him of manufacturing methcathinone, Agent Derby’s affidavit
established that Killion used the same modus operandi in making
false accusations against Braddy. The district court denied
Shugart’s motion for a new trial, concluding that Agent Derby’s
affidavit was not “material.”
Motions for new trial based on newly discovered evidence are
generally disfavored. See United States v. Nixon, 881 F.2d 1305,
1311 (5th Cir. 1989); FED. R. CRIM. P. 33. District courts have
“considerable discretion” in deciding Rule 33 motions. United
States v. MMR Corp., 954 F.2d 1040, 1047 (5th Cir. 1992). We
review the district court’s denial of a motion for a new trial for
an abuse of discretion. United States v. Freeman, 77 F.3d 812, 815
(5th Cir. 1996).
Shugart was not entitled to a new trial unless a reasonable
probability existed that the government’s disclosure of Agent
9
In contrast, the government claimed that Killion taught Shugart
how to manufacture methcathinone and got him started in the
business.
20
Derby’s affidavit would have resulted in acquittal. See United
States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 87 L.Ed.2d
481 (1985); MMR Corp., 954 F.2d at 1046. At trial, Shugart argued
that he was innocent and that Killion had used Shugart’s name to
order ephedrine and had manufactured methcathinone on his property.
Shugart contends that the newly discovered evidence supports his
theory because it shows that Killion also used Braddy’s name and
residence to order and manufacture methcathinone. This
interpretation of the affidavit, however, relies on an unsupported
assumption that Braddy was also innocent and that Killion was lying
about her involvement to protect himself.
Even assuming Agent Derby’s affidavit is consistent with
Shugart’s claim of innocence, we do not believe that presenting
such evidence to the jury would have increased the probability of
a different verdict. First, the government put on ample evidence
of Shugart’s direct involvement in methcathinone production. In
fact, there was evidence that suggested that Shugart was in the
process of manufacturing methcathinone when he was arrested.
Shugart’s theory that Killion alone was responsible for
manufacturing methcathinone was also contradicted by orders for
ephedrine placed well after Killion had left Texas. Moreover, the
newly discovered evidence does not provide a new theory of the
case. Rather, the evidence, at most, bolsters a theory advanced at
trial. The jury rejected Shugart’s version of the events, and we
believe that it is unlikely that his “new” evidence would disturb
that conclusion. Because the evidence at issue does not undermine
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the jury’s verdict, the district court did not abuse its discretion
by denying Shugart’s motion for a new trial.
V. Sentencing Calculation
Shugart argues that the district court erred in calculating
his sentence under the applicable Sentencing Guidelines. It is
well settled that in reviewing an appeal from a guideline-based
sentence, this court “will uphold the district court’s sentence so
long as it results from a correct application of the guidelines to
factual findings which are not clearly erroneous.” See, e.g.,
United States v. Sarasti, 869 F.2d 805, 806 (5th Cir. 1989).
Specific factual findings regarding the quantity of drugs to be
used in determining the base offense level are reviewed on appeal
only for clear error. United States v. Angulo, 927 F.2d 202, 204-
05 (5th Cir. 1991). In making findings of fact pursuant to the
Sentencing Guidelines, a district court need only be convinced by
a preponderance of the evidence. United States v. Castro, 889 F.2d
562, 570 (5th Cir. 1989), cert. denied, 493 U.S. 1092, 110 S. Ct.
1164, 107 L.Ed.2d 1067 (1990).
The district court found that 39,000 tablets of ephedrine were
ordered and intended for use by Shugart in the production of
methcathinone, and sentenced him accordingly. This court has
previously held that “[t]he exclusionary rule applicable to Fourth
Amendment violations is generally inapplicable to the district
court’s consideration of evidence for purposes of sentencing.”
United States v. Montoya-Ortiz, 7 F.3d 1171, 1181 (5th Cir. 1993)
(quoting United States v. Robins, 978 F.2d 881, 891-92 (5th Cir.
22
1992)). In addition, we hold today that placement of the subject
ephedrine orders was properly considered relevant conduct in this
case because Shugart intended to possess the ephedrine for the
purpose of manufacturing methcathinone and the orders were placed
in preparation for the offenses of which he was convicted. See
U.S.S.G. § 1B1.3(a)(1). Based on these principles and our
independent examination of the record, we hold that the district
court did not clearly err by attributing 39,000 tablets of
ephedrine to Shugart.
For all of the foregoing reasons, Shugart’s convictions and
sentences are AFFIRMED.
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