United States v. Becker

230 F.3d 1224, 2000 Colo. J. C.A.R. 5999, 55 Fed. R. Serv. 1284, 2000 U.S. App. LEXIS 27093, 2000 WL 1629459
CourtCourt of Appeals for the Tenth Circuit
DecidedOctober 31, 2000
Docket98-3361
StatusPublished
Cited by87 cases

This text of 230 F.3d 1224 (United States v. Becker) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Becker, 230 F.3d 1224, 2000 Colo. J. C.A.R. 5999, 55 Fed. R. Serv. 1284, 2000 U.S. App. LEXIS 27093, 2000 WL 1629459 (10th Cir. 2000).

Opinions

LUCERO, Circuit Judge.

Appealing from both his conviction after trial and his sentence for various drug and firearms charges, defendant-appellant Lesley Lee Becker asserts as grounds for relief several evidentiary errors, insufficient evidence to support his methamphetamine-related convictions, and error in his sentencing. The principal assertions require us to further analyze two developing areas of law: the protection afforded by the Sixth Amendment Confrontation Clause against the admission of out-of-court statements of a non-testifying confidential informant offered to show why police sought a search warrant; and whether a prior search and subsequent drug convictions constituted inadmissible evidence of prior bad acts. Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we ■ conclude that although hearsay testimony and evidence of prior bad acts should not have been admitted, any errors were harmless and we therefore affirm Becker’s conviction and sentence.

I

On March 31, 1997, police searched Becker’s residence pursuant to a warrant. During the search, police seized glassware, chemicals, a chemical company brochure, and other manufacturing materials consistent with the production of methamphetamine. Although methamphetamine was not discovered at the residence, methamphetamine residue was detected in a bottle, a zip-lock bag, and a mixing bowl. The police also seized two recipes for methamphetamine production, marijuana, numerous guns, and ammunition.

As a result of the evidence obtained during the search, Becker was indicted on five counts: (1) attempting to manufacture methamphetamine in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2; (2) managing and controlling a dwelling for the purpose of unlawfully manufacturing and storing methamphetamine in violation of 21 U.S.C. § 856(a)(2) and 18 U.S.C. § 2; (3) possessing with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; (4) possessing acetone with the intent to manufacture methamphetamine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; and (5) possessing firearms in and affecting commerce as a convicted felon in violation of 18 U.S.C. §§ 922(g) and 924(a)(2). A jury found Becker guilty on all counts. The district court sentenced him to concurrent sentences of' 262 months imprisonment on Count 1, 240 months imprisonment on Counts 2 and 4, and 120 months imprisonment on Counts 3 and 5.

On appeal, Becker argues that hearsay from a confidential informant, profile evi[1228]*1228dence of a methamphetamine cook, and prior bad acts were erroneously admitted into evidence. Specifically, the jury heard from Officer Bruce Voigt, who testified that an unidentified, non-testifying confidential informant told him that Becker was selling methamphetamine and manufacturing hash oil and that this informant provided “true and reliable” information. (Ill R. at 196.) Becker objected to this testimony as hearsay and a violation of the Confrontation Clause. His motion in li-mine and contemporaneous objections were overruled. The jury also heard testimony from Agent Tom Walsh who, based on his training and experience, described the characteristics of a methamphetamine cook. Although Becker did not object to this evidence at trial, he now asserts it constitutes inadmissible profile evidence. As to prior bad acts, the district court overruled Becker’s objection and admitted, pursuant to Fed.R.Evid. 404(b), evidence of Becker’s prior convictions for conspiracy to possess methamphetamine and for failure to pay a drug tax, as well as evidence of a prior raid on his home during which police recovered items allegedly consistent with methamphetamine manufacturing.

In addition to these evidentiary claims, Becker argues the evidence was insufficient to support his methamphetamine-related convictions. As to his sentencing, he contends the district court’s determination of drug quantity was erroneous. The district court rejected Becker’s objections and adopted the findings and recommendations of the presentence report, concluding that Becker’s methamphetamine lab capability, as it pertains to Count 1, was six pounds based on the amount of muriatic acid seized from his residence.

II

We review for abuse of 'discretion the district court’s evidentiary rulings, considering the record as a whole.1 See United States v. Jones, 44 F.3d 860, 878 (10th Cir.1995). Becker argues the district court abused its discretion when it admitted incriminating out-of-court statements by a non-testifying confidential informant, introduced through Officer Voigt’s testimony, because the statements at issue were hearsay and violated the Confrontation Clause of the Sixth Amendment.

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. See Fed.R.Evid. 801(c). Testimony which is not offered to prove the truth of an out-of-court statement, but is offered instead for relevant context or background, is not considered hearsay. See United States v. Wilson, 107 F.3d 774, 781 (10th Cir.1997); United States v. Freeman, 816 F.2d 558, 563 (10th Cir.1987). “[0]ut-of-court statements by informants offered to explain the background of an investigation ... must be evaluated under ... Fed.R.Evid. [ ] 401 and 403 for relevance and to prevent confusion or prejudice.” Freeman, 816 F.2d at 563 (citing United States v. Mancillas, 580 F.2d 1301, 1309-10 (7th Cir.1978)). On hearsay issues, we accord heightened deference to the district court “because the determination of whether certain evidence is hearsay rests heavily upon the facts of the particular case.” Wilson, 107 F.3d at 780.

The following testimony of Officer Voigt was elicited during government questioning:

Q: [Wjhat information did the confidential informant give you that caused you to believe that there was something criminal at the Defendant’s residence?

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230 F.3d 1224, 2000 Colo. J. C.A.R. 5999, 55 Fed. R. Serv. 1284, 2000 U.S. App. LEXIS 27093, 2000 WL 1629459, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-becker-ca10-2000.