United States v. Whaler

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 21, 2007
• Docket: 06-6154
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS March 21, 2007 FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court

U N ITED STA TES O F A M ER ICA,

Plaintiff-Appellee,

v. No. 06-6154 (D.C. No. CR-05-39-002-T) ANTHON Y HA ROLD W HALER, (W .D. Okla.)

Defendant-Appellant.

OR D ER AND JUDGM ENT *

Before H E N RY, B AL DOC K , and M U RPH Y, Circuit Judges.

Anthony Harold W haler appeals his conviction on one count of possessing

pseudoephedrine knowing or having reasonable cause to believe it would be used

to manufacture methamphetamine in violation of 21 U.S.C. § 841(c)(2). W e have

jurisdiction under 28 U.S.C. § 1291, and we AFFIRM .

* After examining the briefs and appellate record, this panel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. I.

On the night of January 8, 2005, Benjamin Ray Dodson drove M r. W haler

and Kassandra Gayle Fox approximately sixty-eight miles from Cache, Oklahoma,

to W ichita Falls, Texas, ostensibly to exchange a DVD player at Wal-M art. In

W ichita Falls, they visited two W al-M art stores. At about 9 p.m. at one store, one

of the group purchased three boxes of cold medicine. By 10:30 p.m. the group

had reached the other W ichita Falls store, where one of them used a shopping

card to purchase another tw o boxes of cold medicine and to activate two

W al-M art shopping cards (2-B transaction). Then at 10:40 p.m. one of the group

went through another register and purchased two more boxes of cold medicine

with one of the newly activated shopping cards (2-C transaction). In all, the

group participated in at least four transactions at this store within thirteen

minutes, all at different registers. By 11:15 p.m., the group had returned to the

first store, where the shopping cards activated at the second store were used to

purchase boxes of cold medicine in at least three separate purchases at different

registers. 1

1 The appellate record does not contain copies of the exhibits presented at trial, so our review is limited to the testimony concerning the exhibits. Exhibits 2-A through 2-D were identified as receipts from the W al-M art transactions, with 2-B being the receipt from the 2-B transaction and 2-C the receipt from the 2-C transaction. Exhibit 3 was identified as a W al-M art videotape showing the 2-C transaction. Apparently Exhibit 4, a summary presented by the government, showed that the group used W al-M art shopping cards eight times on January 8, 2005, to purchase cold medicines containing pseudoephedrine.

-2- Soon after the three crossed back over the Oklahoma state line, a police

officer stopped the car for failing to stop at a stop sign. M r. Dodson consented to

a search of the vehicle, and the officer discovered twenty-three boxes of cold

medicine in W al-M art bags in the trunk. Knowing that cold medicine commonly

is used to make methamphetamine, the officer became suspicious and arrested the

three. During a pat-down search the officer found two receipts in M r. W haler’s

pocket, which M r. W haler said he took off the dash of the car. The receipts were

from the 2-B and 2-C transactions. Initially M r. W haler stated he did not know

anything about the cold medicine, but after M r. Dodson was placed in a different

car, M r. W haler told police that M r. Dodson gave him and M s. Fox a ride to

W ichita Falls and had asked them to buy cold medicine.

M r. Dodson and M s. Fox eventually pleaded guilty to possessing

pseudoephedrine knowing or having reasonable cause to believe it would be used

to manufacture methamphetamine in violation of 21 U.S.C. § 841(c)(2).

M r. W haler was tried before a jury. At trial, A Drug Enforcement Administration

(DEA) agent testified that pseudoephedrine is a key ingredient for making

methamphetamine. He testified that in 2004 Oklahoma had passed a law limiting

individuals’ ability to purchase cold medicines containing pseudoephedrine, and

that after the law passed, the DEA began to see more people leaving the state to

acquire pseudoephedrine. He also testified that if taken according to the package

directions, the pills presented as exhibits at trial would last for about six months.

-3- In addition, the officer who stopped the car described the stop and testified that

there were W al-M art stores in Lawton, Oklahoma, which is approximately

twenty-five miles closer to Cache than W ichita Falls. A W al-M art

loss-prevention employee testified that the W ichita Falls W al-M art stores had

seen an increase in purchases of products containing pseudoephedrine after the

passage of the Oklahoma law , and so they voluntarily limited customers to

purchasing three boxes of cold medicine per transaction. He also identified the

W al-M art videotape of the 2-C transaction.

M r. Dodson and M s. Fox both testified against M r. W haler, stating that the

three had decided to buy pills to make methamphetamine to split among

themselves. M r. Dodson testified that he and M r. W haler had previously cooked

and used methamphetamine together and that M r. W haler provided the shopping

cards to purchase the pills. He testified that he bought clothes at W al-M art to

change into and disguise himself as he went back through the registers, and that

each member of the group bought cold medicines that night. He also identified

M r. W haler on Exhibit 3, the W al-M art videotape. M s. Fox testified that she and

M r. W haler had used methamphetamine together previously, that she,

M r. Dodson, and M r. W haler had discussed using the cold pills to make

methamphetamine, that all three of them were involved with buying the cold

medicine the night of January 8, and that they had stopped at one point and

counted the grams to see how close they were to their goal of sixty grams. Both

-4- M r. Dodson and M s. Fox admitted that they had pleaded guilty to charges

stemm ing from the arrest and that their cooperation could result in them receiving

more favorable treatment.

The jury found M r. W haler guilty, and the district court sentenced him to

serve 115 months’ imprisonment. M r. W haler appeals his conviction.

II.

A.

M r. W haler first argues that the district court erred when it failed to give

the jury a separate accomplice-testimony instruction. He concedes that the

standard of review is for plain error because he did not raise this issue in the

district court. See United States v. Olano, 507 U.S. 725, 731-32 (1993). Under

this standard, an error must be “plain” and “affect[] substantial rights.” Id. at 732

(quotations omitted). Even if these conditions are met, “[Federal Rule of

Criminal Procedure] 52(b) leaves the decision to correct the forfeited error within

the sound discretion of the court of appeals, and the court should not exercise that

discretion unless the error seriously affects the fairness, integrity or public

reputation of judicial proceedings.” Id. (quotations and alteration omitted).

“Accomplice instructions are required when a defendant is tied to a crime

solely through the uncorroborated testimony of an accomplice-witness.” United

States v. Serrata, 425 F.3d 886, 900 (10th Cir. 2005). Thus, “if the testimony of

an accomplice is uncorroborated, the court must instruct the jury that testimony of

-5- accomplices must be carefully scrutinized, weighed with great care, and received

with caution,” and a failure to do so may constitute plain error. United States v.

Hill, 627 F.2d 1052, 1053 (10th Cir. 1980) (quotations omitted). “Accomplice

testimony is uncorroborated ‘when the testimony . . . is the only testimony

directly tying the defendant into the criminal transaction.’” United States v.

Gardner, 244 F.3d 784, 789 (10th Cir. 2001) (quoting United States v. W illiam s,

463 F.2d 393, 395 (10th Cir. 1972)).

Clearly M r. Dodson and M s. Fox were accomplices. Unlike the situation in

Gardner, however, there was evidence other than their testimony connecting

M r. W haler to the crime, including the W al-M art videotape, the receipts found in

M r. W haler’s pocket, and M r. W haler’s own statement to police that M r. Dodson

asked him to purchase cold pills. Thus, although the accomplices testified about

matters not addressed by other evidence, their testimony as a whole was

“substantially corroborated,” and the district court did not plainly err in failing to

give a separate accomplice instruction. Serrata, 425 F.3d at 900-01; see also

United States v. Wiktor, 146 F.3d 815, 818 (10th Cir. 1998) (per curiam); United

States v. Shuckahosee, 609 F.2d 1351, 1356-57 (10th Cir. 1979); United States v.

Waldron, 568 F.2d 185, 187 (10th Cir. 1977) (per curiam).

Even assuming, as M r. W haler contends, that the lack of corroboration

regarding M r. W haler’s intent required a separate accomplice instruction and the

failure to provide such an instruction constituted an error that was plain, this

-6- court should exercise its discretion to correct the forfeited error only if it

“seriously affects the fairness, integrity or public reputation of judicial

proceedings.” Olano, 507 U.S. at 732 (quotations and alteration omitted). W e do

not believe that any error here would qualify for an exercise of discretion. “[T]he

concern is whether [the defendant’s] rights were recognized in the court’s rulings

and in the court’s instructions.” Hill, 627 F.2d at 1054 (quotation omitted). In

Instruction 18, the jury was instructed that “[a]ll evidence of a w itness whose

self-interest or attitude is shown to be such as might tend to prompt testimony

favorable or unfavorable to an accused should be considered with caution and

weighed with great care.” R. Doc. 69 at 11-12. 2 Although the instruction does

not identify M r. Dodson and M s. Fox by name, it certainly applies to them and

generally conveys the same message as an accomplice instruction. See Waldron,

568 F.2d at 187 (“The instruction would have informed the jury to scrutinize the

accomplice’s testimony carefully because he had allegedly been promised

immunity from prosecution for his testimony.”); United States v. Birmingham,

447 F.2d 1313, 1317 (10th Cir. 1971) (“[T]he court must instruct the jury that

testimony of accomplices must be carefully scrutinized, weighed with great care,

and received with caution.”). In light of this instruction, and the principle that

2 Although both parties quoted the jury instructions (district court record document No. 69) in their briefs, neither party designated them to be included in the record on appeal. W e remind M r. W haler’s counsel that it is the appellant’s responsibility to provide us with a proper record on appeal. In this case, however, we sua sponte supplement the record with district court document No. 69.

-7- “[a] defendant is not entitled to any specific wording of instructions,” United

States v. M cGuire, 27 F.3d 457, 462 (10th Cir. 1994) (quotation omitted), if there

were error, we would not exercise our discretion to correct it.

B.

M r. W haler next contends that the evidence was insufficient to support his

conviction, an issue he preserved in the trial court. “Sufficiency of the evidence

is a question of law that we review de novo, asking only whether taking the

evidence— both direct and circumstantial, together with the reasonable inferences

to be drawn therefrom— in the light most favorable to the government, a

reasonable jury could find the defendant guilty beyond a reasonable doubt.”

United States v. Chavis, 461 F.3d 1201, 1207 (10th Cir. 2006) (quotations and

alteration omitted). For conviction under 21 U.S.C. § 841(c)(2), the government

must prove beyond a reasonable doubt that M r. W haler (1) knowingly or

intentionally possessed a listed chemical (2) know ing, or having reasonable cause

to believe, that the listed chemical would be used to manufacture a controlled

substance.

M r. W haler’s insufficiency argument rests on disregarding the testimony of

his accomplices. But accomplice testimony alone, even uncorroborated

accomplice testimony, may support a conviction, and it is the jury’s job to

evaluate credibility and believe or disbelieve the testimony of the witnesses. See

United States v. M agallanez, 408 F.3d 672, 682 (10th Cir.), cert. denied,

-8- 126 S. Ct. 468 (2005). There is no reason to ignore the accomplice testimony

presented at M r. W haler’s trial. The evidence summarized above, taken in the

light most favorable to the government, is sufficient to support M r. W haler’s

conviction.

C.

Finally, M r. W haler argues that § 841(c)(2) is unconstitutionally vague

because it “completely fails to define the phrase reasonable cause to believe.”

Aplt. Br. at 34. He contends that the statute fails “to give an ordinary person

reasonable notice as to the prescribed conduct,” id., and that it fails to give law

enforcement sufficient guidance to avoid the subjective and arbitrary enforcement

of the law. M oreover, he argues that the statute is unconstitutionally vague as

applied to him because the jury instructions defining “reasonable cause to

believe” relied on an objective mental standard rather than a subjective standard.

Again, M r. W haler failed to raise these issues in the district court, so our review

is for plain error. Olano, 507 U .S. at 731-32. “We conduct this analysis less

rigidly when reviewing a potential constitutional error.” United States v. Dazey,

403 F.3d 1147, 1174 (10th Cir. 2005) (quotation omitted).

“The void for vagueness doctrine requires that a penal statute define the

criminal offense with sufficient definiteness that ordinary people can understand

what conduct is prohibited and in a manner that does not encourage arbitrary and

discriminatory enforcement.” United States v. Saffo, 227 F.3d 1260, 1270

-9- (10th Cir. 2000) (quotations and alteration omitted). “V agueness challenges to

statutes which do not involve First A mendment freedoms must be examined in

light of the facts of the case at hand. One to whose conduct a statute clearly

applies may not successfully challenge it for vagueness.” Id. (quotation and

alteration omitted). In Saffo, we concluded that “[t]he evidence produced at trial

demonstrates that Saffo had knowledge of the illegality of her activities, and thus

this is not a situation where she could not reasonably understand that her

contemplated conduct is proscribed.” Id. (quotation and alteration omitted).

W hile the evidence in this case is not as compelling as the circumstances in Saffo,

the evidence presented at M r. W haler’s trial indicates that he is one to whose

conduct the statute clearly applies. Accordingly, he may not successfully

challenge § 841(c)(2) for vagueness.

In addition to his general vagueness challenge, M r. W haler also asserts an

as-applied argument regarding mens rea. In Saffo, we held “that the ‘knowing or

having reasonable cause to believe’ standard in 21 U.S.C. § 841(d)(2) [now

§ 841(c)(2)] imposes a constitutionally sufficient mens rea requirement.”

227 F.3d at 1268. Saffo, however, further stated:

In so holding, we note that the standard involves a subjective inquiry that looks to whether the particular defendant accused of the crime knew or had reasonable cause to believe the listed chemical would be used to manufacture a controlled substance. This requires scienter to be evaluated through the lens of this particular defendant, rather than from the prospective of a hypothetical reasonable man. In this

-10- context, the “reasonable cause to believe” standard is one akin to actual knowledge.

Id. at 1268-69. M r. W haler complains that his jury was instructed under an

objective “reasonable person” standard, rather than the Saffo-mandated subjective

standard. The jury instruction states in relevant part:

You are instructed that pseudoephedrine is a listed chemical as a matter of law and that methamphetamine is a controlled substance. You are also instructed that it does not matter whether the defendant knew that pseudoephedrine was a listed chemical. It is sufficient that the defendant knew or had reasonable cause to believe that it would be used to manufacture methamphetamine.

A “reasonable cause to believe,” as used in the indictment, means to have knowledge of the facts which, although not amounting to direct knowledge, would cause a reasonable person, knowing the same facts, to reasonably conclude that the pseudoephedrine would be used to manufacture methamphetamine.

R. Doc. 69 at 11-12.

In light of Saffo, it appears that the last paragraph of this instruction may

have been erroneous, as it arguably encourages the jury to focus on the

knowledge of a hypothetical reasonable person. See also United States v.

Buonocore, 416 F.3d 1124, 1133 (10th Cir. 2005) (stating the court’s instructions

in § 841(c)(2) case correctly stated the law where “[t]he court instructed the jury

that Defendant must have known or had reasonable cause to believe that the

ephedrine and pseudoephedrine he sold w ould be used to manufacture

methamphetamine” and “further instructed the jury that this inquiry is entirely

subjective, the inquiry is not to be viewed from the perspective of a hypothetical

-11- reasonable person, and the mens rea element is not satisfied if Defendant acted

through mistake, negligence, carelessness, or belief in an inaccurate

proposition”). Even where there is an error, though, under the plain error

standard it is within our discretion whether to correct it. Olano, 507 U.S. at 732.

W e are not convinced that any error here “seriously affects the fairness, integrity

or public reputation of judicial proceedings.” Id. (quotations and alteration

omitted). The second paragraph quoted above appears to be in the nature of a

general definition refining the last sentence of the first paragraph, which informed

the jury that M r. W haler himself had to have the required knowledge or

“reasonable cause to believe.” R. Doc. 69 at 12. Thus, the jury actually was

instructed to focus on M r. W haler’s own state of mind.

M oreover, the evidence presented at trial generally focused on

§ 841(c)(2)’s “knowing” prong rather than the “reasonable cause to believe”

prong. Consequently, it does not appear that M r. W haler’s substantial rights were

affected by any error in the “reasonable cause to believe” instruction. See United

States v. Lajoie, 942 F.2d 699, 702 (10th Cir. 1991) (holding that, where the

erroneous instruction concerned a component of the charge other than the

component which was the focus of the government’s case, the misstatement was

harmless); see also United States v. Parnell, 581 F.2d 1374, 1382 (10th Cir. 1978)

(“It is well established that where a crime denounced disjunctively in the statute

-12- is charged in the conjunctive, proof of any one of the allegations will sustain a

conviction.”).

III.

The judgment of the district court is AFFIRMED.

Entered for the Court

Robert H. Henry Circuit Judge

-13-