United States v. Terry Glen Appleby

975 F.2d 1384, 1992 WL 235228
CourtCourt of Appeals for the Eighth Circuit
DecidedNovember 23, 1992
Docket91-2602
StatusPublished
Cited by7 cases

This text of 975 F.2d 1384 (United States v. Terry Glen Appleby) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth 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. Terry Glen Appleby, 975 F.2d 1384, 1992 WL 235228 (8th Cir. 1992).

Opinions

McMILLIAN, Circuit Judge.

Terry Glen Appleby appeals from a final judgment entered in the United States District Court1 for the Western District of Missouri, upon a jury verdict, finding him guilty of one count of conspiracy to manufacture and distribute methamphetamine in violation of 21 U.S.C.A. § 846 (West Supp. 1992) and one count of possession of a three-neck, round-bottom flask with the intent to manufacture methamphetamine in violation of 21 U.S.C. § 843(a)(6). Appleby was sentenced to 235 months imprisonment on the conspiracy count and 48 months, to be served concurrently, on the possession of a flask count; five years supervised release on the conspiracy count and one year supervised release, to be served concurrently, on the possession of a flask count; and a special assessment of $100.00. For reversal, Appleby argues that the district court erred in (1) denying his motion to suppress the evidence seized from searches in Kansas, (2) denying his motion for judgment of acquittal on the basis that multiple conspiracies were shown, (3) determining his base offense level, and (4) allowing the government’s handwriting expert to testify without proper notice to the defense. Appleby also argues that the cumulative effect of the trial court errors amounted to a violation of his right to due process and a fair trial. For the reasons discussed below, we affirm the judgment of the district court.

Appleby was involved in a conspiracy to manufacture and distribute' methamphetamine in both Missouri and Kansas. This court affirmed the convictions of two of Appleby’s co-conspirators, William Stockton and Gary Badley. United States v. [1386]*1386Stockton, 968 F.2d 715 (8th Cir.1992) (,Stockton). Our opinion in Stockton fully sets forth the facts as they relate to Apple-by, id. at 716-17, so we need not repeat them here.

MOTION TO SUPPRESS

Appleby argues that the district court erred in denying his motion to suppress the evidence seized from his Thayer, Kansas, residence and the Chanute, Kansas, storage facility. Appleby argues that the affidavits for the search warrants contained material misrepresentations made with a “reckless disregard for the truth.” Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 2684, 57 L.Ed.2d 667 (1978) (Franks).

Agent Robert Beckham of the Kansas Bureau of Investigation filed the affidavits accompanying the applications for the search warrants. Agent Beckham relied on information provided by DEA Agent Harley Sparks. Some of the information was incorrect as the district court explained:

According to Agent Beckham, Agent Sparks had reported that glassware and chemicals had been seized from storage facilities owned by defendants Appleby and Badley in Springfield, Missouri. Glassware and chemicals were found in only one facility at E-Z storage. That facility was under the control and possession of Thomas Edward Scott, not defendants Appleby or Badley.
Furthermore, the affidavit for the search warrant of the Thayer residence alleged that the combined seizures from the storage lockers in Chanute and Springfield did not constitute an entire laboratory. This information could have led the magistrate who issued the warrant to believe that the remaining glassware and chemicals were located in the Thayer residence. The information apparently was incorrect because the government’s chemist, Sanford Angelos, testified that the contents in the E-Z storage facility constituted a complete laboratory.

United States v. Appleby, No. 90-03419-01/07-CR-S-4, slip op. at 2-3 (W.D.Mo. May 6, 1991) (order).

The district court held that while some of the statements in the affidavit for the search warrant were false, “Appleby did not prove by a preponderance of the evidence that Agent Beckham made any false statements deliberately or with reckless disregard for the truth.” Id. at 3-4. We agree with the conclusion of the district court, but for different reasons.

Assuming for the purposes of analysis only that Appleby did prove that the false statements were made with reckless disregard for the truth, we hold that, even without the false information, probable cause existed to issue both search warrants. See Franks, 438 U.S. at 171-72, 98 S.Ct. at 2684-85. As for the first search warrant for the storage unit at GMN Storage in Chanute, Kansas, Agent Beckham’s •affidavit correctly stated that Appleby had been under investigation for illegal drug activity and had been arrested in Springfield, Missouri. The affidavit also stated that evidence obtained from a search of Appleby and Badley’s motel rooms, pursuant to a separate search warrant, indicated that Appleby had rented storage space in the Springfield area. Agent Beckman’s affidavit explained that during this investigation, officers found a receipt for a storage area called GMN Storage in Appleby’s name. Finally, the affidavit stated that further investigation resulted in locating the GMN storage area in Chanute and verifying the Appleby had rented a storage unit. Based on this evidence, without the false information about the glassware found in Springfield, probable cause existed to issue the search warrant.

As for the search warrant for Appleby’s residence in Thayer, Kansas, the affidavit contained all of the information set forth in the storage unit affidavit. Additionally, the affidavit included the fact that glassware and precursor chemicals were found in the GMN storage area rented by Apple-by. This evidence, without the false evidence regarding whether enough equipment for a full laboratory had been recov[1387]*1387ered at other locations, was sufficient to constitute probable cause.

EXISTENCE OF MULTIPLE CONSPIRACIES

Appleby next argues that the evidence at trial showed the existence of multiple conspiracies, not a single conspiracy as charged in the indictment and as the jury found. Therefore, Appleby argues that the district court should have directed a verdict of acquittal on the conspiracy count. Ap-pleby’s argument is identical to the arguments made by his co-conspirators Badley and Stockton in their consolidated appeal. We rejected their argument and, therefore, reject Appleby’s argument for the same reasons. See Stockton, 968 F.2d at 717-18.

DETERMINATION OF BASE OFFENSE LEVEL

Appleby next argues that the district court erred in determining that the conspiracy was responsible for between 30 and 100 kilograms of methamphetamine and, therefore, applying a base offense level of 38. U.S.S.G. § 2D1.1(c)(3) (1990). Appleby’s argument is identical to the arguments made by his co-conspirators Badley and Stockton in their consolidated appeal. We rejected their argument and, therefore, reject Appleby’s argument for the same reasons. See Stockton, 968 F.2d at 719-20.

TESTIMONY BY GOVERNMENT HANDWRITING EXPERT

Appleby next argues that the district court should not have allowed the government’s handwriting expert to testify because the name of the expert was not disclosed until a week into the trial. Appleby argues that this late disclosure made it impossible for him to hire his own handwriting expert.

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975 F.2d 1384, 1992 WL 235228, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-terry-glen-appleby-ca8-1992.