Appendix — Ross v. United States

No.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

SPECK ARON ROSS,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

APPENDIX

NANCY HOLLANDER, ESQ.

Counsel of Record for Petitioner

FREEDMAN, BOYD, DANIELS, PEIFER,

HOLLANDER, GUTTMANN & GOLDBERG, PA.

20 First Plaza, Suite 700

Albuquerque, New Mexico 87102

(505) 842-9960

IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, No. 91-2003

Plaintiff-Appellce,

Vv,

PARKER D. LANGSTON,

Decfendant-Appellant.

UNITED STATES OF AMERICA, No. 91-2013

Plaintiff-Appellee,

Vv.

HUEY LEE FRANCIS,

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 91-2014

Plaintiff-Appellee,

Vv.

ENOCH MCILROY,

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 91-2015

Plaintiff-Appellee,

Vv.

WILLIAM MCILROY,

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 91-2016

Plaintiff-Appelice,

Vv.

JAMES MCILROY,

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 91-2024

Plaintiff-Appelice,

Vv.

SPECK ARON ROSS,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES

DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

(D.C. No. 89-467-JC)

Entered July 2, 1992

Mary Y.C. Han, Albuquerque, New Mexico, for Defendant-

Appellant Huey Lee Francis.

Richard J. Knowles, Albuquerque, New Mexico, for Defendant-

Appellant Enoch Mcllroy.

Ward Casey, Fort Worth, Texas, for Defendant-Appellant William

Kelly McIlroy.

Nancy Hollander of Freedman, Boyd, Daniels, Peifer, Hollander,

Guttmann & Goldberg, P.A., Albuquerque, New Mexico, for

Defendant-Appellant Speck Aron Ross.

Presiliano Torrez, Assistant U.S. Attorney, Albuquerque, New

Mexico (Don J. Svet, United States Attorney, and Louis E.

Valencia, Assistant U.S. Attorney, Albuquerque, New Mexico, on

the brief), for Plaintiff-Appellee.

Nos. 91-2003 and 91-2016 were submitted on the briefs:

Randy Schaffer, P.C., Houston, Texas for Defendant-Appellant

Parker Dee Langston; and David L. Plotsky, Albuquerque, New

Mexico, for Defendant-Appellant James Mcllroy.

Don J. Svet, United States Attorney, and Louis E. Valencia,

Assistant U.S. Attorney, Albuquerque, New Mexico for Plaintiff-

Appellee.

Before BRORBY and HOLLOWAY, Circuit Judges and KANE,

District Judge.*

HOLLOWAY, Circuit Judge.

Following a jury trial and guilty verdicts in September

1990, the defendants-appellants were convicted on counts of an

indictment charging them with participating in a criminal drug

manufacturing conspiracy, inter alia. In their appeals the

defendants challenge the convictions on the grounds that: (1)

the district court erzed in refusing to suppress evidence

obtained in an unreasonable automobile search; (2) the

discretionary choice of a federal forum by state investigators

deprived them of due process; (3) the government engaged in

prosecutorial misconduct at trial, including the presentation of

false testimony; (4) the search of a small, enclosed trailer, not

described in a warrant that authorized the search of nearby

property, violated the Fourth Amendment;

*Honorable John L. Kane, Jr., United States District Judge for the District of

Colorado, sitting by designation.

nia

and (5) the district court erred in admitting hearsay

evidence. In addition, three of the defendants assert that

the evidence was insufficient to support their convictions

of the criminal drug conspiracy and of aiding and abetting

in the manufacture of amphetamine.

The appeals have been consolidated and will be

decided by this opinion. We find no reversible error and

accordingly affirm.

I. BACKGROUND

In mid-July 1989, the New Mexico State Police

began investigating a suspected clandestine drug

laboratory at the 56,000-acre C.A. Ranch. The

investigation followed a tip by ranch employees that

suspicious events began occurring after a group of men

arrived as the guests of one of the owners, Joseph M.

Lloyd, who was living and working on the ranch. A few

days later, Lloyd and his guests departed separately from

the ranch. The state police located Lloyd’s car, in which

defendant Francis was a passenger, soon after it left the

ranch. Searching the trunk, a state trooper found

approximately 11 pounds of amphetamine in plastic bags.

In a subsequent search at the ranch, state and federal

investigators seized approximately one pound of

amphetamine, laboratory equipment, and chemicals.

As a result of a plea agreement, Lloyd testified as

a government witness in the defendants’ prosecution.

Viewed in the light most favorable to the government,

Lloyd’s testimony, as well as other prosecution evidence,

showed that five of the defendants, Francis, the three

Mcllroys, and Ross, visited the ranch on an invitation that

Lloyd extended through a mutual friend. Lloyd testified

that he had invited the defendants to visit the ranch for

the purpose of reconnoitering for deer hunting.

Lloyd explained at trial that the visitors failed to

show up late on July 5 at a prearranged meeting place

near Sweetwater, Texas, from which he was supposed to

have guided them to the ranch. The government

presented evidence that in Lloyd’s absence, a truck driven

by defendant Langston transported to the ranch the

equipment and chemicals for an amphetamine laboratory,

as well as four men, defendants Francis, Enoch and

William Mcllroy, and Ross.

- Lloyd testified that upon his return to the ranch on

July 6, he was surprised to find three waiting visitors,

Francis, William Mcllroy, and Ross. Accompanying the

three men to the basement of the main ranch house,

Lloyd observed what was described to him as an

amphetamine laboratory.

The government’s evidence showed that before

Lloyd’s arrival, the ranch foreman, Rogers, gave Enoch

Mcllroy a ride to Tucumcari, New Mexico, to meet James

Mcllroy, his father, Following Lloyd’s return to the ranch,

James and Enoch Mcllroy arrived in a pickup truck

towing a small, enclosed trailer carrying ether.

Lloyd testified that all of the visitors took turns

overseeing the amphetamine cooking process 24 hours a

day. On approximately July 8, the visitors moved the

operation to a trailer house in order to conduct a

potentially violent chemical reaction. On July 11, William

Mcllroy, expressing concern about discovery, left the

ranch and did not return.

The government’s evidence showed that the ranch

foreman and his wife became suspicious, at least in part

because the visitors seemed to stay up all night and

because in the evenings a strong, stinging chemical odor

permeated the ranch headquarters area. On July 11, the

foreman Rogers and a ranch employee reported the

activities at the ranch to a New Mexico State Police

lieutenant in nearby Las Vegas. In response, the state

police visited the ranch and conducted aerial surveillance.

The prosecution presented evidence that because

the final chemical process involved the use of potentially

dangerous ether, the visitors moved the operation to the

ruins at an abandoned homesite on the ranch. Lloyd

rented a generator in Santa Fe on July 12 to supply power

to the remote laboratory. On July 13, as the laboratory

operators were conducting the final process, Langston

made a second, brief visit to the ranch.

Beginning late on July 15, four of the defendants

(Enoch and James Mcllroy, Huey Francis, and Speck

Ross) spent five or six hours cleaning up the main house

and packaging the equipment. Enoch and James Mcllroy

and Ross then left the ranch. Late in the morning on July

16, Lloyd and Francis left the ranch bound for Fort

Worth. The foreman’s wife reported their departure to

the state police.

A state police officer spotted and followed the car

that Lloyd was driving near Tucumcari, New Mexico.

Lloyd testified that he stopped voluntarily when the officer

pulled up alongside him. Searching the trunk, the officer

found a plastic garbage bag containing approximately 11

pounds of amphetamine. Late in the day, narcotics agents

executing a search warrant at the C.A. Ranch seized

laboratory equipment and chemicals from the basement of

the main ranch house and from the trailer that James and

Enoch Mcllroy had towed to the ranch. In addition, the

agents discovered approximately one pound of

amphetamine iri a night table in a bedroom in the house.

Lloyd eventually began cooperating with the

government, and on October 24, 1989, gave a statement

about the laboratory operation that implicated the

defendants. In November 1989, a grand jury returned an

indictment naming the six defendants.’

‘A four-count indictment dated November 14, 1989, charged the

defendants as follows:

Count I charged Huey Lee Francis, Parker D. Langston, Enoch

Mcliroy, James Mcliroy, William Mcliroy, Speck Aron Ross, and Mike South

with conspiring to manufacture more than 500 grams of amphetamine, and

aiding and abetting, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), 21

U.S.C. § 846, and 18 U.S.C. § 2. The conspiracy was alleged to have occurred

from on or about June 26, 1989, until and through July 16, 1989, in the

District of New Mexico and elsewhere.

Count II charged the six appealing defenddnts and South with

manufacturing more than 500 grams of amphetamine, and aiding and abetting,

in violation of 21 U.S.C. § 841(a)(1) and (B)(1)(C) and 18 U.S.C. § 2.

10

At trial, the appealing defendants did not testify.

Instead, the defense presented witnesses whose testimony

primarily challenged the credibility of Lloyd’s testimony on

behalf of the government. The testimony of an expert

witness called by the defense challenged the credibility of

Lloyd’s denial on direct examination that he used

amphetamine following his arrest. Several character

witnesses testified for Langston. In addition, the

defendants asserted legal errors, including the admission

of evidence seized in violation of the Fourth Amendment

and prosecutorial misconduct.

(Footnote 1 ;

Count III charged the six appealing defendants and South with

Possession with intent to distribute more than 500 grams of amphetamine, and

aiding and abetting, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) and 18

U.S.C. § 2.

Count IV charged Francis with the Carrying or use of a firearm

during and in relation to a drug trafficking crime in violation of 18 U.S.C. §

924(c)(1) and 21 U.S.C. § 841(a)(1) and (b)(1)(C).

11

Following a jury trial in September 1990, the six

defendants who are here appealing were convicted of: (1)

conspiracy to manufacture more than 500 grams of

amphetamine, and (2) the manufacture of more than 500

grams of amphetamine. In addition, Francis, James

Mcllroy, and Ross were convicted of possession with

intent to distribute more than 500 grams of amphetamine

and aiding and abetting. Francis was convicted of the

carrying or use of a firearm during and in relation to a

drug trafficking crime. Mike South was acquitted on all

charges.

II. SUPPRESSION OF EVIDENCE SEIZED

IN AUTOMOBILE SEARCH

Francis contends that the district court erred in

denying his motion to suppress the amphetamine seized

from the trunk of Lloyd’s automobile. Francis asserts that

the court should have suppressed the seized amphetamine

12

as the fruit of an improper, warrantless automobile search.

In reviewing the denial of a motion to suppress evidence,

we “accept the trial court’s findings of fact, unless clearly

erroneous." United States v. McAlpine, 919 F.2d 1461,

1463 (10th Cir. 1990). We review the district court’s legal

conclusions de novo. E.g., United States v. Wright, 932

F.2d 868, 877 (10th Cir.), cert. denied, 112 S. Ct. 428, and

cert. denied, 112 S. Ct. 450 (1991).

The evidence presented at the suppression hearing,

viewed favorably to the trial judge’s ruling on the motions

to suppress, showed the following: Late in the morning

on July 16, 1989, Lloyd and Francis left the C.A. Ranch in

a 1984 Oldsmobile Ninety-Eight. Locating the car while

patrolling the Tucumcari area, New Mexico State Police

Officer Siebenaler drove alongside it. The officer testified

that after he made eye contact with Lloyd, who was

13

_ ms

driving, Lloyd slowed and then stopped the car on the

shoulder.

Siebenaler testified that in response to his request

for permission to search the trunk, Lloyd replied "sure"

and opened the trunk. V R. 49. Inside the trunk,

Siebenaler said he observed a plastic bag that Lloyd told

him contained "some dirty clothes." Jd. Siebenaler

testified that when he asked to look inside the garbage

bag, Lloyd hesitated but again replied "sure." Jd. at 50.2

Making an existing opening in the bag larger and pushing

some clothes aside, Siebenaler found clear plastic bags

that contained a white powdery substance later identified

as amphetamine.

>The officer said that in response, Lloyd tore open the bag and exposed an

article of clothing, but quickly closed it again. V R. 50. Siebenaler said he then

asked Lloyd to move the bag; when Lloyd complied, the officer said he

observed that it sagged. Id. at 51.

14

As a threshold matter, we address the passenger

Francis’ standing to challenge the automobile search and

the seizure of the amphetamine.’ In order to challenge

the legality of a search or a seizure through a motion to

suppress, a defendant bears the burden of demonstrating

a violation of his or her personal Fourth Amendment

rights. United States v. Erwin, 875 F.2d 268, 270 (10th Cir.

“We address briefly Francis’ contention that the search followed a

pretextual traffic stop. As a passenger in the car, Francis could have had

standing to challenge a traffic "stop." See, United States v. Erwin, 875 F.2d

268, 269-70 (10th Cir. 1989) (ruling automobile passenger could challenge

traffic stop as separate issue from Standing to challenge to subsequent search).

We find no error in the district court’s conclusion that no “stop” occurred; we

feel the record shows a voluntary police/citizen encounter.

The uncontested evidence at the suppression hearing showed that

Lloyd voluntarily stopped the car soon after the state police officer, driving

alongside, made eye contact with him. In Siebenaler’s undisputed testimony,

Lloyd "stopped on his own." V R. 47. Siebenaler turned on the emergency

lights on his patrol car for the first time after he parked on the shoulder.

Whether an encounter between a police officer and another person is

consensual "depends on whether a reasonable person under the circumstances

would believe [he or]she was not free to leave and/or disregard the official’s

request for information." United States v. Werking, 915 F.2d 1404, 1408 (10th

Cir. 1990). Arguably a driver might be somewhat nervous about, or even

intimidated by, being followed on the highway by a police car, or by observing a

police officer driving alongside on a two-lane highway and staring. However,

the officer’s actions did not indicate that Lloyd was not free to continue driving.

The facts support the conclusion that what occurred was, at least initially, a

consensual encounter between a police officer and a private citizen.

15

1989) (citing Rakas v. Illinois, 439 U.S. 138, 131 n.1, 140

(1978)). Whether a defendant has Standing to challenge a

search and seizure depends upon whether "the defendant

manifested a subjective expectation of privacy in the area

searched and whether society is prepared to recognize

that expectation as objectively reasonable." Erwin, 875

F.2d at 270.

We conclude that on the evidence presented at the

suppression hearing, the district court did not err in ruling

that Francis did not demonstrate standing to challenge the

legality of the search and seizure of the evidence in the

trunk. Francis defaulted in carrying his burden of

establishing at the hearing that he had a protectable

privacy interest in the plastic bag in the trunk. The

government's uncontested evidence at the suppression

16

hearing showed that Francis remained silent while Lloyd

consented to, and assisted in, the search of the trunk.

Even if we could conclude that Francis had

standing to challenge the search and the seizure of the

amphetamine, we would affirm the district court’s ruling

denying the motion to suppress. We reject Francis’

objection premised on the assertion that Lloyd lacked the

authority to consent to the search. A police officer must

reasonably believe, based upon "the facts available to the

officer at the moment" of the search, that the person

giving consent has authority over the area to be searched.

Illinois v. Rodriguez, __ US. ___, 110 S. Ct. 2793, 2801

(1990); see also McAlpine, 919 F.2d at 1465 (applying

Rodnguez standard). Applying this standard, we conclude

that at the time of the search the officer could reasonably

have believed that Lloyd had authority to consent to the

17

search of the trunk. By remaining silent while the driver

consented to, and assisted in, the search, Francis did not

give the officer any reason to believe that he had an

interest in the items in the trunk.

We also reject Francis’ contention that the officer

improperly opened a closed container within the trunk.

We test the scope of a consensual search by asking:

“what would the typical reasonable person have

understood by the exchange between the officer and the

suspect?" Florida v. Jimeno, US. __, 111 S. Ct.

1801, 1803-04 (1991). The officer’s undisputed testimony

showed that Lloyd gave unconditional permission for him

to search first the trunk, and then the container. Lloyd

placed no restrictions on a search of the trunk; he is said

to have just replied "sure."

18

III. | DUE PROCESS VIOLATION IN POLICE

INVESTIGATORS’ DISCRETIONARY

CHOICE OF A FEDERAL FORUM

We next address whether the law enforcement

officers who investigated the amphetamine laboratory at

the ranch deprived the defendants of due process in

referring their cases for prosecution to the United States

Attorney rather than to a New Mexico state prosecutor.

Francis and Ross seek to invoke due process protections

because they contend that the discretionary referral

decision subjected them to harsher penalties under the

federal Sentencing Guidelines than they would have faced

had they been prosecuted in a New Mexico state court.

On July 16, 1989, the day of Lloyd’s arrest and the

seizure of the amphetamine, agents of the New Mexico

State Police sought assistance from the office of the state

Prosecutor in Las Vegas to obtain a warrant to search the

19

MMM EST AVAILABLE COPY

‘A. Ranch. The testimony at an evidentiary hearing

howed that then-Deputy District Attorney Montoya

ssisted the agents in obtaining a state district judge’s

pproved of the warrant. Later in the day the state

Olice, assisted by agents of the federal Drug Enforcement

\dministration ("the DEA"), executed the warrant. The

ederal prosecution of Lloyd began the next day, on July

7, when the government filed a federal complaint in the

district of New Mexico, supported by a DEA agent’s

ffidavit. Although state prosecutor Montoya testified

hat initially he intended to file state charges in the case,

One were filed.

One premise of the defendants’ argument is that

\ereased due process protections apply to police state

lestigators’ choice of a federal forum for prosecution

cause the decision is significant to the ultimate charging

DUBLISHER'S NOTE

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FOR FILMING

Page 21

to make the referral decision arbitrarily. However, we

previously have rejected similar arguments by explaining:

In the absence of proof that the choice of

forum was improperly motivated or based

on an impermissible classification as a

matter of constitutional law, the prosecutor’s

discretion to prosecute in a federal rather

than a state forum does not violate due

process or equal protection notwithstandin

the lack of any articulated guidelines for the

exercise of such discretion.

United States v. Morehead, 959 F.2d 1489, 1499 (10th Cir.

1992) (emphasis added). Further, we have held that the

Constitution does not mandate written policies to guide

police investigators’ referral decisions. Andersen, 940 F.2d

at 597.4 The New Mexico State Police did not violate

*The defendants rely in large part upon a holding that we have since

reversed. See United States v. Williams, 746 F. Supp. 1076 (D. Utah 1990),

by law enforcement officers to present a case either to state or federal

Prosecutors. 746 F. Supp. at 1080. We rejected that analysis because there

was "no evidence in the record that the referral to federal prosecutors was

based on race or other impermissible reasons.” Willams, slip op. at 10.

a «

22

’ ;

due process by referring the case for prosecution in a

federal forum in the absence of any written policy

guidelines.

The mere fact that police investigators refer a case

to federal, rather than state, prosecutors because harsher

penalties potentially are available under federal statutes

does not deprive a defendant of due process. A

prosecutor, who is responsible for the charging decision, is

permitted to consider the same factor. See, e.g., United

States v. Batchelder, 442 U.S. 114, 125 (1979) (explaining a

“prosecutor may be influenced by the penalties available

upon conviction, but this fact, standing alone, does not

give rise to a violation of the Equal Protection or Due

Process Clause"), quoted in Andersen, 940 F.2d at 596; See

also Morehead, 959 F.2d at 1499 (explaining more severe

consequences of federal conviction do not "render the

government’s choice of a federal forum unconstitutional");

United States v. Cook, 949 F.2d 289, 291 (10th Cir. 1991)

(explaining a "defendant’s due process rights are not

violated by the federal government’s decision to prosecute

under a federal, rather than State, statute, notwithstanding

the harsher penalties"). :

Because the defendants have not demonstrated a

deprivation of due process, we find no error in the district

court's denial of their request for a downward departure

under the Sentencing Guidelines, or sentencing under the

state sentencing scheme, to remedy an alleged due process

violation. See Morehead, 959 F.2d at 1498-99 (rejecting

downward departure on basis of argument that prosecutor

violated due process in arbitrarily choosing federal forum).

IV. ALLEGATIONS OF PROSECUTORIAL

MISCONDUCT

Next, we consider allegations of prosecutorial

misconduct, including the defendants’ contentions that

prosecutors knowingly presented false testimony, posed an

improper hypothetical to a witness, and made improper

argument.

A. The Allegation of Knowing Presentation of

False Testimony

At the same time the criminal prosecution of Lloyd

was underway in the fall of 1989, the government was

preparing a collateral civil proceeding to forfeit his

interest in the C.A. Ranch. During direct examination at

trial, Lloyd stated that he had neither discussed nor

negotiated concerning forfeiture with anyone in the

United States Attorney’s office. Under cross-examination,

Lloyd conceded that his testimony that he had not

discussed the forfeiture with prosecutors was "[n]ot

entirely true" because prior to trial they had questioned

him about his "knowledge of the forfeiture." VIII R. 482-

84.

The defendants argue that Lloyd’s statement on

direct examination was false testimony that prosecutors

had an obligation to correct. They invoke the general

principle that the prosecution’s knowing use of false

evidence violates due process, regardless of whether the

evidence goes to a substantive issue or merely to the

witness’ credibility. Napue v. Illinois, 360 U.S. 264, 269

(1959). In addition, prosecutors have "the responsibility

and duty to correct [testimony they know] to be false and

elicit the truth." Napue, 360 U.S. at 270; see also, e.g.,

Tapia v. Tansy, 926 F.2d 1554, 1563 n.15 (10th Cir.)

(noting prosecutors must correct false testimony.), cert.

denied, 112 S. Ct. 115 (1991).

In order to establish a deprivation of due process,

the defendants also bore the burden of demonstrating that

the false testimony was material. The test for materiality

in the same as the test for harmless constitutional error.

United States v. Bagley, 473 U.S. 667, 679 n.9, 680 (1985).

The test for harmless constitutional error is "whether it

appears ‘beyond a reasonable doubt that the error

complained of did not contribute to the verdict obtained.”

Yatesv. Evatt =US.__,, 111 S. Ct. 1884, 1892 (1991)

(quoting Chapman v. California, 386 U.S. 18, 24 (1967)).

"To say that an error did not contribute to the verdict is,

rather to find that error unimportant in relation to

everything else the jury considered on the issue in

question, as revealed by the record." Yates, 111 S. Ct. at

———

1893. Yates thus instructs us "to make a judgment about

the significance" of the tainted evidence relative to the

remaining evidence. /d.

We conclude in any event that there was no

reversible error. Giving careful consideration to Lloyd’s

incorrect statement on direct examination, we are Satisfied

that it was not material. On cross-examination Lloyd

testified about his knowledge of the forfeiture

Proceedings, as well as about his pretrial discussions with

Prosecutors on the subject. These circumstances were

extensively covered by defense counsels’ questioning.

Viewing the record as a whole, we are satisfied beyond a

reasonable doubt that Lloyd’s statement did not

contribute to the verdict. See Yates y. Evatt, 111 S. Ct. at

1892-93,

The defendants also argue that the prosecution

sponsored false testimony about Lloyd’s pretrial drug use.

Lloyd testified that he had not used amphetamine after

his arrest. However, three of Lloyd’s pretrial urine drug

tests reflected the presence of controlled substances,

including amphetamine. Two of those tests are

emphasized in these appeals. During direct examination

Lloyd testified that he had frequently used antihistamines,

antibiotics and other medications.

We again find no reversible error. It is true that

the defendants can point to extensive evidence that

arguably impeached Lloyd’s credibility on the issue of the

positive urine drug tests. This issue was also fully

developed before the jury and Lloyd was extensively cross-

examined and impeached. Assuming Lloyd’s testimony

was false, we are satisfied that his denial of pretrial

29

amphetamine use, and his attempted explanation for the

positive test results, did not contribute to the verdict

under the Yates v. Evatt test.

B. The ’Vicks Inhaler’ Hypothetical

The defendants next assert that a prosecutor posed

an improper hypothetical question to an expert witness for

the defense on the subject of the possible causes of

Lloyd’s positive drug tests. The prosecutor asked the

witness whether two specific nasal inhalers, including a

Vicks Inhaler, contained amphetamine. The witness

replied, "The Vick’s inhaler is capable of causing a...

positive test result for methamphetamine and for

amphetamine" on some tests. XIII R. 1488. The

defendants contend that the prosecutor’s hypothetical was

improper because the government presented no proof

that Lloyd used the product.

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FOR FILMING

Page 3l

conviction on grounds beyond the admissible evidence

presented." United States v. Pena, 930 F.2d 1486, 1491

(10th Cir. 1991) (quoting United States v. Espinoza, 771

F.2d 1382, 1401 (10th Cir.), cert denied, 474 U.S. 1023

(1985) ( in turn quoting United States v. Dickey, 736 F.2d

571, 596 (10th Cir. 1984), cert. denied, 469 U.S 1188

(1985))). We must consider an improper comment during

argument "against the backdrop of the entire record

before the jury." Pena, 930 F.2d at 1491.

We conclude the prosecutor’s comment was

insignificant when viewed with the expert witness’ forceful

rejection of the possibility that a nasal inhaler could have

caused the positive test results. In addition, the district

judge reminded the jury to "recall the evidence," and

formally instructed the jury that the attorneys’ arguments

were not evidence. Considering the entire record on the

32

issue, we conclude that the prosecutor’s comment had no

effect on the jury’s verdict.

[. Prosecutor’s Comment About Defense

Counsel’s Motives

The defendants contend that reversal is also

warranted because during closing argument a prosecutor

impugned one of the defense attorney’s motives for

questioning Lloyd about his reasons for entering into a

plea agreement. The prosecutor remarked that some of

the defense counsel’s reasons for asking a particular series

of questions evinced "an improper purpose." XIV R.

1638. The prosecutor was interrupted immediately by an

objection to the remark. The judge sustained the

objection and, at defense counsel’s request, instructed the

jury to "disregard [the prosecutor’s] remarks about

counsel’s state of mind." Jd

33

a

The defendants have not demonstrated that the

prosecutor’s comment warrants a new trial. Any possible

prejudice was diminished because the trial court promptly

issued a curative instruction. We conclude that the

comment did not influence the jury to convict the

defendants.

V. ADMISSION OF EVIDENCE SEIZED IN

SEARCH OF UTILITY TRAILER AT

RANCH

Enoch Mcllroy argues that the district court erred

by not suppressing evidence consisting of a cache of

laboratory equipment and chemicals seized from the utility

trailer that he and his father James towed to the ranch.

Around midnight on July 6, Lloyd met Enoch and James,

who were towing the trailer, at the top of a hill near the

entrance to the ranch. VII R. 244-45. Enoch challenges

the search of the trailer as a violation of the requirement

of the Fourth Amendment that warrants describe with

particularity the places to be searched.

Following Lloyd’s departure from the ranch on July

16, 1989, investigators of the new Mexico State Police and

the DEA conducted a search at the C.A. Ranch on the

basis of a warrant authorized by a state judge. The agents

conducted the search in what was described at trial as the

ranch “headquarters area," the area surrounding the main

ranch house in which were located the ranch foreman’s

residence, a trailer house, barns, a horse shed, corrals, a

water tower, and some outbuildings.

Enoch’s argument focuses upon the language in the

search warrant that described the place to be searched.

Accompanying the warrant under the heading

"DESCRIPTION OF PROPERTY TO BE SEARCHED"

was a description of the geographic location of the ranch,

as well as a general description of the structures in the

headquarters area.” The warrant itself did not mention

the utility trailer. However, in the supporting affidavit,

which was incorporated into the warrant through

preprinted language,” the affiant stated that state police

*A separate Page attached to the warrant contained two paragraphs,

including:

DESCRIPTION OF PROPERTY TO BE SEARCHED

The Canon Del Agua Ranch, commonly known as the C.A. Ranch,

which is located in San Miguel County approximately 11.5 miles South of State

Road 104 and approximately 1/4 mile East of State Road 67[.] The property is

further described as having two white ranch houses, the main house being a

large possibly two story dwelling with a pitch roof and being partially

surrounded by a white [picket] fence. The second house being described as a

smaller single story home with a pitched roof and being situated to the East of

the main house. The property has a barn and shop located to the South of the

main house, also a garage and several other Outbuildings and sheds. An

abandoned trailer house is located approximately 500 feet North of the main

dwelling.

Government's Addendum at 7. On the same page was a one-paragraph

description of the items to be seized.

“The first paragraph of the warrant stated:

Proof by Affidavit for Search Warrant, having been submitted to

me, I am satisfied that there is probable cause that the person named

Or property described in the Affidavit is located where alleged in the

36

officers had observed the utility trailer parked near the

main ranch house.’ In a more general reference to

"trailers," the affiant wrote that "clandestine laboratories

are often established in remote, isolated areas and are

quite frequently kept in trailers for mobility, and to hinder

detection and apprehension efforts." Government’s

Addendum at 10.

(Footnote 6 Continued)

Affidavit and I find the grounds[s] exist for the issuance of the Search

Warrant. A copy of the Affidavit is attached and made a part of this

Warrant.

Government’s Addendum at 6 (emphasis added).

"The affiant, Day, a New Mexico State Police officer, related in the affidavit

the observation of officers, including himself, who had visited the ranch on July

12 and 13, 1989. Day stated that on July 12 three officers interviewed ranch

employees about the occurrences since the arrival of Lloyd’s guests. Day

Stated that the employees told the officers that the visitors to the ranch "had

brought a white utility or concession type trailer to the ranch. The officers

observed the aforementioned trailer parked to the west of the main ranch

house." Government’s Addendum at 9.

Day stated that during his-visit to the ranch with another officer on

July 13 he had observed that "[a] small white utility or concession type trailer

was parked to the west of the main house.” Id.

37

Testimony a the suppression hearing showed that

searchers found the trailer parked on the outside of a

white picket fence that partially surrounded the main

ranch house, at a distance from the main ranch house of

approximately 20 or 30 feet. V R. 32. Opening the

locked trailer, the searchers discovered items including

barrels, chemicals, cans of ether, glassware, a small pump,

a bottle of compressed gas, and bales of hay.

At a pretrial suppression hearing, the government

presented no evidence other than the warrant. Ruling

from the bench, the district court denied MclIlroy’s motion

to suppress the evidence seized from the trailer.

A. Enoch Mcllroy’s Standing

The government renews its argument that Enoch

Mcllroy does not have standing to challenge the search of

the utility trailer. For the suppression hearing, Enoch

BE RSE RE ER ES wa ETE ES ete ee NAL

Mcllroy asserted in an affidavit that he had accompanied

his father in towing the trailer to the ranch on July 7,

1989, as an invited guest of Lloyd. Enoch Mcllroy stated

also that "[d]uring our Stay at the [r]anch we’d go back

and forth between the trailer and the house," and that

'[a]t various times, I had the key to the trailer." Enoch

Mcilroy’s Aff. para. 8. Mcllroy further stated that he

recalled locking the trailer before he left the ranch, and

that "[W]e . . . intended to come back in about a month to

pick up the trailer." Jd. paras. 9-10. The government did

not challenge Mcllroy’s assertions.

We conclude that Enoch’s affidavit satisfied the

requirements of Fourth Amendment Standing. His

affidavit showed that he had asserted some control over

the trailer that supported his subjective privacy

expectation. By locking the trailer before he left the

39

ranch, Enoch manifested a subjective expectation that the

contents of the trailer would remain private. We conclude

also that Enoch asserted an expectation of privacy in the

trailer that "society is willing to recognize as ’reasonable.”"

United States v. Leary, 846 F.2d 592, 595 (10th Cir. 1988)

(quoting Hudson v. Palmer, 468 U.S. 517, 525 (1984) (in

turn quoting in part Katz v. United States, 389 U.S. 347,

361 (1967) (Harlan, J., concurring))). By locking the

trailer before he left the ranch, Mcllroy took a precaution

“customarily taken by those seeking privacy." Rakas v.

Illinois, 439 U.S. 128, 152 (1978) (Powell, J., concurring).

B. Particularity in Warrant

We next address Enoch’s contention that the

search was unlawful because the utility trailer was not

listed in the warrant as one of the places to be searched.

Enoch invokes the requirement in the Fourth Amendment

that search warrants may not issue except those

"particularly describing the places to be searched." U.S.

Const. amend. IV. Concerning the descriptions of "places

to be searched," we have said that "[t]he warrant must

describe the place to be searched with sufficient

particularity so that the executing officer can locate and

identify it with reasonable effort. The requisite specificity

of the description differs for rural and urban areas and

depends heavily on the facts of each case." United States

v. Dorrough, 927 F.2d 498, 500 (10th Cir. 1991) (citations

omitted).

The description here of the place to be searched

begins: "The Canon Del Agua Ranch." A "single warrant

may authorize the search of several different places or

residences” as long as probable cause is shown for

searching each place. United States v. Rios, 611 F.2d 1335

’

1347 (10th Cir. 1979). A warrant authorizing a search of

the entire ranch could have been valid as long as probable

cause existed to search the entire ranch. See United States

v. Alexander, 761 F.2d 1294, 1301 (9th Cir. 1985) (holding

warrant valid for search of 40-acre ranch). Interpreting

the warrant less expansively, however, the district court

decided that it authorized the search of, at least, the

"headquarters area" around the main ranch house.®

We agree that the warrant sufficiently identified

the C.A. Ranch "headquarters area." It provided a

geographical description of the headquarters area, along

with a general description of the structures at the site.

The description enabled the searching party to locate the

‘Preceding its oral ruling during a suppression hearing on August 1, 19990,

the district court commented that "the search warrant starts off, it says, '[t}he

entire ranch [is] the description of the property to be searched.’ Well,

obviously. . .it’s 90 sections, and we're not probably going to search every

section." V R. 42. The court then concluded that the utility trailer had been

“well within the area that the search warrant goes to” because it had been in

the immediate vicinity of the buildings described in the warrant. Id at 42-43.

42

C.A. Ranch headquarters area with a reasonable effort.

We hold that the warrant sufficiently authorized the

search of the nearby trailer.

Even if the utility trailer was a searched and seized

improperly, we hold that the admission of evidence seized

was harmless constitutional error.” The harmless

constitutional error analysis requires us to determine

whether the tainted evidence contributed to the verdict.

The evidence seized from the utility trailer consisted of

laboratory equipment and some chemicals. From the

basement of the main ranch house the search Party seized

large amounts of similar materials. We believe that the

testimony about the activities and the contents connected

to that basement was more significant than the testimony

about the items seized from the trailer. At most, the

evidence seized from the trailer was cumulative. We are

satisfied beyond a reasonable doubt that the verdict would

have been the same without the testimony about the items

seized from the trailer.

VI. ADMISSION OF ALLEGED HEARSAY

EVIDENCE

Enoch Mcllroy contends that the district court

erred in admitting hearsay statements establishing the

location at the ranch at which the searching party seized

two laboratory instruments that bore his fingerprints.

During the July 16 search, investigators seized chemicals

and laboratory equipment from two primary locations at

the ranch, the basement of the main house and the utility

trailer parked outside. A latent fingerprint examiner

44

testified that Enoch’s fingerprints were on two of the

seized laboratory instruments, a white ceramic funnel and

a condenser tube.

We cannot agree with Enoch that the government

established the locations at which the two items were

found with inadmissible hearsay statements. Case agent

Jacoby testified that he could recall seeing just one

ceramic or porcelain funnel at the ranch and that it had

been found in the basement. Jacoby testified that all of

the condenser tubes seized at the ranch came from the

basement. Jacoby further explained during cross-

examination that he observed, as well as participated in,

the seizures from the basement. Thus there appears to

have been at least some evidence that Jacoby’s testimony

was based on firsthand information. Enoch has not

demonstrated that the agent’s testimony about the

45

locations at which the two instruments were seized was

inadmissible hearsay.'°

Vil. SUFFICIENCY OF EVIDENCE OF

CONSPIRACY

Langston, Enoch Mcllroy, and William Mcllroy

each contend that the government presented insufficient

evidence to support their convictions for conspiracy to

manufacture amphetamine. In reviewing the sufficiency of

the evidence of a criminal charge, we determine whether

the "evidence -- both direct and circumstantial, together

‘We also cannot find error in the district court’s admission of a document

that described the locations at which items were seized at the ranch. See II

Supplemental R. Mcliroy correctly notes that the agents who prepared the

document, a "return and Inventory” for the search warrant filed in state court

following the search, did not observe the location at which each items was

found, but rather relied on the case agent to tell them where the items had

been seized. X R. 884-85; XI R. 1111. The court admitted the document at

the suggestion of defense counsel, and without objection. Id. at 1102.

Enoch has not made clear which of the government’s trial evidence he

believes was inadmissible hearsay. Assuming he intended to challenge the

admission of the search warrant return, he did not preserve the error by

making a timely objection at trial. See United States v. Taylor, 800 F.2d 1012,

1017 (10th Cir. 1986, cert. denied, 484 U.S. 838 (1987) (stating general rule

that “for a party to preserve alleged error for appeal, he must make a timely

and proper objection").

4

with reasonable inferences to be drawn therefrom -- is

sufficient if, when taken in the light most favorable to the

government, a reasonable jury could find the defendant

guilty beyond a eeoenires doubt." United States v. Hooks,

780 F.2d 1526, 1531 (10th Cir.), cert. denied, 475 U.S. 1128

(1986).

The district court’s instructions enabled the jury to

consider finding the defendants guilty under either one of

two theories, as principals in the conspiracy or as aiders

and abettors to the conspiracy. In order to present

sufficient evidence that a defendant is guilty of a criminal

drug conspiracy as a principal under 21 U.S.C. § 846, the

government carries the burden of proving: (1) "that two

or more persons agreed to violate the law,""' (2) "that

'! Though not an issue in the appeal, we note briefly that the

government presented ample evidence of an agreement between two or more

persons to manufacture amphetamine. Government witness Lloyd described

the establishment and operation of a laboratory, as well as the participation of

the defendants there except Langston, who left after the four men were

47

the defendant knew at least the essential objectives of the

conspiracy," and (3) "that the defendant knowingly and

voluntarily became part of [the conspiracy]." United States

v. Fox, 902 F.2d 1508, 1514 (10th Cir.), cert. denied, 111 S.

Ct. 199 (1990).

Even if the jury decided that the defendants were

not principals, it could have concluded that they aided and

abetted in the conspiracy. In order to be guilty as an

aider and abettor under 18 U.S.C. 5 2:

As this court said in Roth v. United States,

10 Cir., 339 F.2d 863, 865, "To be an aider

and abettor requires that a defendant

‘associate himself with the venture, that he

participate in it as in something that he

wishes to bring about, that he seek by his

(Foomote 11 Contirmed)

brought to the ranch headquarters. Lioyd’s testimony was corroborated by

other evidence, in particular the testimony of ranch employees and the

evidence about the laboratory equipment and chemicals seized in the search.

The amphetamine seized during the searches of the ranch and of Lioyd’s

automobile further corroborated Lioyd’s testimony by showing that the

laboratory had operated as he had described.

48

er “

~ NR PR oat PR gt

acts

action to make it succeed.’ The proof must

establish the commission f the offense by

someone and the aiding and abetting by the

defendant so charged." (footnotes omitted)

See also, Nye & Nissen v. United States, 336

U.S. 613, 69 S. Ct. 766, 93 L. Ed. 919....

White v. United States, 366 F.2d 474, 476 (10th Cir. 1966);

see also, e.g., United States v. Peoni, 100 F.2d 401, 402 (2d

Cir. 1938) (stating general requirements of aiding and

abetting).'°

The aiding and abetting statute operates not to

create a separate crime but instead to abolish “the

common law distinction between principal and accessory."

United States v. Smith, 838 F.2d 436, 441 (10th Cir. 1988),

12 Though the parties did not address the issue, we note that as a

prerequisite to aiding and abetting the government is required to prove that

"someone has committed” the underlying substantive offense. United States v.

Rodgers, 419 F.2d 1315, 1317 (10th Cir. 1969); see also, e.g, United States v.

Hamblin, 911 F.2d 551, 557 (11th Cir. 1990) (describing as element of aiding

and abetting proof that “substantive offense was committed"), cert. denied, 111

S. Ct. 2241 (1991). We conclude that the government satisfied this

requirement by presenting substantial evidence of a conspiracy to manufacture

amphetamine.

49

cert. denied, 490 U.S. 1036 (1989). "A defendant can be

convicted as to aider and abettor even though he was

indicted as a principal for commission of the underlying

offense and not as an aider and abettor, providing that

commission of the underlying offense is also proven." Jd.

Thus, because the jury was instructed on both theories we

should affirm the convictions if the government presented

sufficient proof of either the substantive offense or of

aiding and abetting.

A. Enoch Mcllroy

The government presented evidence from which

the jury could infer that Enoch Mcllroy arrived at the

ranch early on July 6 with Francis, William Mcllroy, and

Ross as a passenger in the pickup truck driven by

Langston. The evidence showed that Enoch left the ranch

later in the day with the foreman to meet his father in

Tucumcari; Enoch then accompanied his father back to

the ranch in a pickup truck that was towing a utility

trailer. Lloyd testified that upon meeting Enoch and

James Mcllroy upon their arrival at the ranch, he noticed

that the utility trailer smelled of ether. Lloyd said James

acknowledged that the trailer contained ether.

The government’s evidence showed that Enoch

remained at the ranch throughout the amphetamine

manufacturing processes. In Lloyd’s view, Enoch had a

‘very limited. role" in the drug manufacturing operation,

“mainly as a go-for or dirty work person" who did

household chores. VII R. 272. However, describing the

defendants’ roles in the amphetamine manufacturing

processes in the basement, Lloyd testified that "[m]ost of

the time there was * least one observer in the basement

watching the process, overseeing it. They all took turns at

51

ee

various pointed in the day." Jd. at 251. The government

presented testimony that Enoch’s fingerprints were on two

pieces of laboratory equipment, a white ceramic or

porcelain funnel and a condenser tube. Lloyd testified

that after the manufacturing process was complete, Enoch

Participated in the five- or six-hour clean-up work that

involved packaging the materials used in the laboratory

and cleaning the house.

Enoch asserts the government’s evidence of

conspiracy was "equally consistent with both guilt and

innocence," and consequently was insufficient to support

the conviction. Fox, 902 F.2d at 1513-14. For example,

Enoch contends that the government’s proof that he

assisted his father with the trailer, and did household

chores, was consistent with his mere presence at the site

of the drug manufacturing laboratory and was not

52

sufficient to show that he participated in the conspiracy.

See, e.g., United States v. Savaiano, 843 F.2d 1280, 1294

(10th Cir.) ("mere presence" at crime scene alone

insufficient evidence of knowing participation in

conspiracy), cert. denied, 488 U.S. 836 (1988).

We conclude that from the government’s evidence

the jury could reasonably infer that Enoch was aware of

the amphetamine manufacturing operation. Enoch was at

the ranch from the day the laboratory was est up to the

day the process was completed. The evidence showed

that Enoch rode to the ranch at one point in a vehicle

reeking of ether; throughout the process, a pungent

chemical odor was prominent at the ranch headquarters.

From Lloyd’s testimony that "all" of the visitors had taken

turns Overseeing the laboratory, the jury could have

inferred that Enoch was knowledgeable about the

53

conspiracy. Enoch’s fingerprint on the laboratory

instruments further supported the inference that he had

firsthand knowledge about the operation.’® In addition,

the jury could infer Enoch’s knowledge about, as well as

his participation in, the operation from Lloyd’s testimony

that Enoch helped dismantle the laboratory. We conclude

that the government presented sufficient evidence of

Enoch’s knowledge of the object of the conspiracy.

B. William Mcllroy

The government’s evidence showed that Langston

delivered William to the C.A. Ranch jury prior to the

laboratory start-up. Lloyd testified that upon his arrival at

the ranch house later on the same day, Francis, William

Mcllroy, and Ross, collectively, explained the

'S Asked specifically whether he had seen Enoch Mcliroy in the

basement, Lloyd testified: "I never observed him in the basement.” VII R.

272. The statement raised an issue for the jury to resolve about the weight to

be given to Lloyd’s testimony.

amphetamine operation to him and gave him a tour of the

basement laboratory. William was present and

participated as the other men discussed aspects of the

laboratory operation, including the danger of explosion,

the measures taken to reduce the odor, the possibility of

detection by ranch employees, and the expected duration

of the manufacturing process."

The government presented evidence that William

made an earlier-than-planned departure from the ranch

on July 11. Lloyd quoted William as explaining that he

was dissatisfied with the operation because he did not feel

that it was secure and he feared discovery.

We are persuaded from the conversation that

occurred upon Lloyd’s arrival at the ranch that the jury

'* Loyd testified that during his Sirst conversation with the three men,

jury Francis remained silent. VII R. 230.

55

could have inferred that William Mcllroy was

knowledgeable about, and involved in, the manufacturing

operation. In addition, the government presented

evidence from which the jury could infer that William had

taken his turn overseeing the manufacturing process.'®

In view of the: evidence of William’s knowledge about, and

Participation iin, the laboratory operation, we are not

persuaded by his argument that the circumstances were

equally consisttent with an innocent explanation for his

presence at the ranch--to reconnoiter for a deer hunt.

C. Parker Langston

The gowernment’s evidence placed Langston at the

C.A. Ranch om two occasions. The government presented

*S On cross-examination, Lloyd seemed to limit his testimony. Lioyd was

asked: "You never saw Bill McIlroy do anything with you own eyes that had

anything to do with the actual manufacture of amphetamine, did you?" Lloyd

replied: “I sure didin’t.". VIII R. 477. Lioyd’s arguably contradictory testimony

On this point raised factual issues about William Mcliroy’s actual role in the

Operation that were for the jury to resolve.

56

evidence that Langston arrived at the ranch on July 6,

1989, driving a four-door, red pickup truck that was

towing an aluminum, stock trailer. The government

presented direct and circumstantial evidence that the

truck driven by Langston was transporting four of the

defendants.'° The ranch foreman testified that upon

Langston’s arrival all he could see through the cracks in

the sides of the trailer was hay that appeared to "real old"

and "damaged." IX R. 650-51. Government witnesses

testified that later in the day they observed similar hay

piled outside the house around a window in the basement

near a drum labeled "acetone." Lloyd testified that he

‘© The government’s evidence showed that the "group" present when

Lloyd arrived--Francis, William McIlroy, and Ross--explained collectively to

Lioyd that "Parker D. had brought them." VII R. 232.33. From the evidence,

the jury could have inferred that Enoch Mcliroy also arrived at the ranch with

Langston and the other three men. After the men arrived at the ranch, the

foreman drove Enoch to Tucumcari to meet his father, James Mcllroy.

arrived during the evening hours and was surprised to find

a that functioning amphetamine laboratory had been set

up in the basement. Lloyd asked the group--Ross,

Francis, and William Mcllroy--how they got to the ranch

and they said that Parker D. had brought them." VII R.

233.

Recalling Langston’s second visit, Lloyd testified

that early on July 13 he discovered Langston asleep on

the couch in the living room of the main ranch house.

Lloyd testified that he had been expecting Langston to

return because "[o]ne of the parties at the house there...

I believe it was Jim Mcllroy, had contacted him and asked

him to come to the ranch to pick them and their

equipment up." VII R. 274. Lloyd testified that at the

time Francis, James Mcllroy, and Ross were conducting a

chemical process at some ruins located five or six miles

from the ranch house. Lloyd said he told Langston that

the men were at "some ruins .. . and they should be back

fairly soon." Jd. at 275. Lloyd said he then went to work

and did not see Langston again.

While not strong, we feel the indication from all

the evidence is that a substantial portion of the laboratory

equipment was transported to the ranch by the trailer that

was pulied by Langston with the pickup. The trailer was

an open stock trailer, not a sealed container.'” The

ranch foreman, Rogers, testified about old, rotten hay, a

17

We can distinguish the cases that Langston cites in support of his

argument that the government’s evidence was insufficient to show that he knew

that the cargo in the trailer was laboratory equipment. The jury could infer

more than merely that Langston was a passenger in an enclosed, padlocked

truck, as in United States v. Cooper, 567 F.2d 252, 254-55 (3d Cir. 1977).

Rather, the jury could infer that he was the operator of an open stock trailer

delivering equipment and Passengers to a distant site. Unlike the

circumstances in United States v. Gomez, 776 F.2d 542, 549 (Sth Cir. 1985), the

government presented evidence that Langston did more than merely associate

with, or chauffeur, the conspirators. Instead, the jury could infer that Langston

furthered the conspiracy by delivering the personnel and equipment for the

laboratory, and then returned when callec to pick them up.

59

barrel, and a garden hose and "this and that," which he

Saw Outside the ranch house. Rogers was asked who left

the hay there, and he replied, "Well, this bunch of guys

that was there, they left it all there." IX R. 673.

The testimony about Langston’s second trip to the

ranch provided at least some additional evidence that he

knew about the cargo on the trailer. Lloyd’s testimony

that James McIlroy had contacted Langston near the end

of the manufacturing process to pick up the men "and

their equipment" was evidence from which the jury could

infer that Langston knew he had transported laboratory

materials to the ranch. We conclude the government

presented at least some evidence from which the jury

could have inferred that Langston knew the contents of

the trailer.

In sum, the evidence concerning Langston’s

conviction on the charge of conspiracy to manufacture

amphetamine is not strong. Nevertheless, we feel it is

sufficient to hold, as we do, that viewed in the light most

favorable to the jury’s verdict, it supports Langston’s

conviction as one who aided and abetted in the

conspiracy. The jury could reasonably infer that Langston

transported the four men and a substantial part of the

laboratory equipment to the ranch for the apparent

purpose of carrying out the unlawful scheme.

Vill. SUFFICIENCY OF EVIDENCE OF THE

MANUFACTURE OF AMPHETAMINE

Parker Langston and Enoch and William Mcllroy

next argue that the government presented insufficient

evidence that they manufactured, or aided and abetted in

the manufacture of, amphetamine. The second count of

61

the indictment, upon which each of the three was

convicted, charged them with manufacturing more than

900 grams of amphetamine in violation of 21 US.C. §

541(a)(1) and (b)(1)(C), and aiding and abetting in

vioiation of 18 U.S.C. § 2.

As the trial judge instructed the Jury, in order to

prove that a defendant has manufactured amphetamine,

the government must show that a defendant manufactured

the drug and did so knowingly or intentionally." United

States v. Litteral, 910 F.2d 547. 550 (9th Cir. 1990); see 21

U.S.C. § 841(a)(1). In addition, the judge instructed the

jury that it could convict the defendants of the count if

they aided and abetted in the manufacture of __

amphetamine.

Viewing the evidence in the light most favorable to

the government, it could be found that Enoch and William

62

knowingly participated to some extent in the amphetamine

manufacturing operation. The approximately eleven

pounds of amphetamine discovered in the trunk of the car

Lloyd was driving on July 16 are further proof of the

com dletion of the unlawful operation. And again, while N

not strong, we feel! the evidence was sufficient to show

that Langston performed a role in the laboratory

operation by transporting the equipment and personnel

for the project to the ranch, thus aiding and abetting the

manufacturing offense itself. We hold that the evidence

was sufficient for the jury to have found the necessary

elements to convict these three defendants of the offense

of manufacturing amphetamine.

IX. CONCLUSION

No reversible error has been demonstrated as to

any of the convictions and sentences, and they are

accordingly

AFFIRMED.