Unpublished Disposition, 855 F.2d 864 (9th Cir. 1987)

MEMORANDUM^* 

OVERVIEW

Troy Lee Triplett ("Triplett") appeals from his conviction for conspiracy to manufacture and distribute methamphetamine in violation of 21 U.S.C. §§ 841(a) (1) and 846, and manufacture of methamphetamine in violation of 21 U.S.C. § 841(a) (1). He argues that: 1) the United States Government ("Government") presented insufficient evidence to support the conviction; 2) the district court improperly admitted expert testimony of alleged "counter-surveillance" behavior; 3) the district court improperly instructed the jury on flight as evidence of guilt; and 4) the district court improperly admitted documentary evidence as "indicia of occupancy." We reject these contentions and affirm the conviction.

BACKGROUND

On October 2, 1986, a superseding indictment charged Triplett with conspiracy to manufacture and distribute methamphetamine, and manufacture of methamphetamine. On July 16, 1987, a jury found him guilty on both counts. On September 10, the court sentenced him to eight years on each count, to be served concurrently. The evidence presented by the Government to support the conviction is discussed below in conjunction with Triplett's specific allegations of error.

DISCUSSION

Triplett's first contention is that the Government failed to present sufficient evidence linking him to a conspiracy to manufacture or the actual manufacture of methamphetamine.

Our review of the sufficiency of the evidence is generally limited to determining whether, viewing the evidence in the light most favorable to the government, " 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " United States v. Ochoa-Torres, 626 F.2d 689, 691 (9th Cir. 1980) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). However, Triplett's failure to move for acquittal pursuant to Fed. R. Crim. P. 29 at the close of all the evidence waived the benefit of such a motion.¹  United States v. Patton, 771 F.2d 1240, 1243 (9th Cir. 1985). Absent a motion for judgment of acquittal, we review the sufficiency of the evidence for plain error or to prevent a miscarriage of justice. Patton, 771 F.2d at 1243. We invoke the "plain error" doctrine, under Fed. R. Crim. P. 52(b), only in "exceptional situations." United States v. Larson, 507 F.2d 385, 387 (9th Cir. 1974).

Triplett asserts that the Government presented insufficient evidence to support his conviction for conspiracy to manufacture and distribute methamphetamine and manufacture of methamphetamine. The Government may prove the elements of the crimes through circumstantial or indirect evidence. See United States v. Loya, 807 F.2d 1483, 1486 (9th Cir. 1987); United States v. Batimana, 623 F.2d 1366, 1368 (9th Cir.), cert. denied, 449 U.S. 1038 (1980). Further, "the reviewing court must respect the exclusive province of the jury to determine the credibility of the witnesses, resolve evidentiary conflicts, and draw reasonable inferences from proven facts." United States v. Taylor, 716 F.2d 701, 711 (9th Cir. 1983); see United States v. Tertrou, 742 F.2d 538, 541 (9th Cir. 1984) (testimony, although heavily impeached, "not so incredible" to depart from rule respecting jury determinations). Finally, as noted above, the evidence must be viewed in the light most favorable to the Government. See Loya, 807 F.2d at 1486.

1. Conspiracy to Manufacture and Distribute Methamphetamine

Title 21 U.S.C. § 846 provides a separate offense for " [a]ny person who ... conspires to commit any offense defined in this subchapter." Under 21 U.S.C. § 841(a) (1), it is unlawful to "knowingly or intentionally ... manufacture ... a controlled substance."

"The elements of conspiracy are 1) an agreement to accomplish an illegal objective, 2) coupled with one or more acts in furtherance of the illegal purpose, and 3) the requisite intent necessary to commit the underlying substantive offense." United States v. Penagos, 823 F.2d 346, 348 (9th Cir. 1987); see United States v. Melchor-Lopez, 627 F.2d 886, 890 (9th Cir. 1980). The Government must present evidence that the defendant participated in the conspiracy with knowledge of the illegal objective. Loya, 807 F.2d at 1488.

Once the Government establishes that a conspiracy exists, evidence of a defendant's slight connection to the conspiracy is sufficient to prove knowing participation. See Penagos, 823 F.2d at 348; United States v. Taylor, 802 F.2d 1108, 1116 (9th Cir. 1986), cert. denied, 107 S. Ct. 1309 (1987). Mere association with members of the conspiracy, or simple knowledge or approval of the unlawful purpose is insufficient. See Melchor-Lopez, 627 F.2d at 891. However, the defendant's presence combined with other evidence may support an inference of knowing involvement. Penagos, 823 F.2d at 348.

The Government established that it had uncovered a large clandestine methamphetamine laboratory. Drug agents uncovered the lab during the execution of a search warrant at Bobbie Womack's property. Womack is a long time friend of Triplett. The property at which the agents executed the warrant consisted of two trailers. One was used for the manufacture of methamphetamine, while the other was primarily used as a residence. Chemicals were stored in a number of smaller structures. The search uncovered numerous chemicals and other items used in the production of methamphetamine, including freon, sodium hydroxide, hydrochloric acid, hydriodic acid, plastic containers labeled L-ephedrine hydrochloride, red phosphorous, vacuum pumps, and filter funnels.

Triplett admitted paying $17,649 in cash to purchase 15,000 pounds of freon from Pameco-Aire Corporation during the period of the alleged conspiracy. He testified that the purchase was for Womack, who provided him with the cash. Some of the freon seized at Womack's trailer was consistent with that sold by Pameco-Aire. Agents found a Pameco-Aire business card in the bedroom of Womack's residence.

It is also uncontested that Triplett assisted Womack in a large purchase of ephedrine from Grau Hall Corporation. Triplett accompanied Womack to Grau Hall on the day Womack ordered the ephedrine. Special Agent Tellis followed the two on the way home from Grau Hall, and testified that Triplett and Womack were engaged in "counter-surveillance" behavior; that is, attempting to detect if they were in fact being followed.

Triplett returned to Grau Hall the next day to purchase and pick up the ephedrine. He paid for it with $100,000 cash that he removed from a suitcase, which he testified was provided by Womack. Special Agent Donohue followed Triplett after he left Grau Hall. He testified that Triplett drove through several residential areas in an "evasive manner," continually changing speeds and backtracking. Triplett ultimately stopped and dumped the barrels of ephedrine into a canal. Triplett testified that he did not know who was following him, and that he drove evasively and dumped the chemicals out of fear for his safety.

The sodium hydroxide uncovered at the search of Womack's trailer contained a label from the Custom Chemical Lab. Thomas Brown, the manager of Custom Chemical, testified that Triplett might have been the person who made a $25,388.00 purchase of ephedrine, phosphorous, and sodium hydroxide, the receipt for which was found in the search of Womack's trailer. However, he could not identify Triplett with certainty. He had previously failed to pick Triplett out of a photo lineup.

A cardboard box with hydrochloric acid uncovered at the search of Womack's trailer contained a label from the Sierra Chemical Company. Agents also found a business card and list of items sold by Sierra Chemical in Womack's residence. Robert Gould, Vice President of Operations, testified that Triplett "could be" the person to whom he sold hydriodic acid, but he was essentially unsure. Agents found receipts for the purchase of hydriodic acid and red phosphorous from Sierra Chemical during the execution of a search warrant at a trailer five to ten minutes from the drug lab. Triplett's son and daughter-in-law were living in the trailer at the time of the search. The Government introduced a check, a motel receipt, and a postal money order, all bearing Triplett's name, as proof that he may also have lived in the trailer (Triplett alleged that he maintained no fixed residency during the time in question). The chemical receipts were thus introduced as potentially also belonging to Triplett.

As noted above, we review this evidence in the light most favorable to the Government, and respect the jury's ability to draw reasonable inferences and resolve evidentiary conflicts. Triplett does not contest the existence of a conspiracy to manufacture and distribute methamphetamine. "Once a conspiracy exists, evidence establishing beyond a reasonable doubt defendant's connection with the conspiracy, even though the connection is slight, is sufficient to convict the defendant of knowing participation in the conspiracy." Penagos, 823 F.2d at 348.

Here, the Government has presented sufficient proof to support the jury verdict. In Taylor, the defendant similarly argued that the evidence indicated only that he was an "unwitting errand runner," and that the Government had done no more than "pile inference upon inference" to argue that he was a more significant participant. 716 F.2d at 710-11. The evidence against the Taylor, like that against Triplett, consisted primarily of legal activities throughout the course of the alleged conspiracy. We nonetheless held that we "must respect the exclusive province of the jury" to evaluate the credibility of witnesses and draw reasonable inferences. Id. at 711; see also Loya, 807 F.2d at 1486 (use of circumstantial evidence and indirect proof to establish sufficiency of the evidence). We thus affirm the conviction for conspiracy to manufacture and distribute methamphetamine.

Title 21 U.S.C. § 841(a) (1) prohibits any person from knowingly or intentionally manufacturing a controlled substance. The court instructed the jury that they could convict the defendant if he aided and abetted the manufacture of methamphetamine. Triplett did not object to this instruction at trial, nor does he on appeal.

"Aiding and abetting consists of active participation in the illegal venture and intent to further the venture's illegal purpose." United States v. Vaughn, 797 F.2d 1485, 1492 (9th Cir. 1986). The defendant must in some way associate with and participate in the venture in an attempt to make it successful. Batimana, 623 F.2d at 1369-70.

We again find no miscarriage of justice in Triplett's conviction. The same evidence that supports the jury determination of guilt on the conspiracy charge supports its finding that Triplett knowingly and intentionally assisted in the manufacture of methamphetamine.

II. Expert Testimony regarding "Counter-surveillance"

Triplett argues that the district court improperly admitted expert testimony that he was engaged in "counter-surveillance." Triplett timely objected to the introduction of the testimony at trial.

A witness who is "qualified as an expert by knowledge, skill [or] experience" may present expert testimony if his or her "specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." Fed.R.Evid. 702; United States v. Espinosa, 827 F.2d 604, 612 (9th Cir. 1987), cert. denied, 108 S. Ct. 1243 (1988). The admission of expert testimony is a matter within the district court's broad discretion. United States v. Anderson, 813 F.2d 1450, 1458 (9th Cir. 1987). We will not disturb the decision "unless it is manifestly erroneous." United States v. Fleishman, 684 F.2d 1329, 1335 (9th Cir.), cert. denied, 459 U.S. 1044 (1982).

We have frequently allowed a law enforcement officer's testimony that a defendant acted in accordance with typical criminal behavior. See Espinosa, 827 F.2d at 612 (and cases cited therein). In Anderson, we upheld the admission of an agent's testimony that the defendant engaged in " 'counter-surveillance techniques.' " 813 F.2d at 1458. In the present case, the district court held a hearing outside of the jury to determine the admissibility of Agent Tellis's conclusion that Triplett was engaged in "counter-surveillance." The behavior in question occurred while Triplett accompanied Womack as they drove away from Grau Hall. Agent Tellis had observed Triplett loading several items into Womack's truck, and he followed the two as they left the store. He testified that Triplett continually appeared to be watching the truck's rear view mirror, and on numerous occasions turned to watch the traffic behind him. He also testified that the vehicle, driven by Womack, proceeded in an out-of-the-way route and made several turns, U-turns, stops, and circles around the block. He then testified that as a result of his experience conducting surveillance it was his conclusion that the two were engaged in counter-surveillance, which he defined as an attempt to determine if one is in fact being followed.

We have previously rejected the argument, again raised here, that testimony of an individual's role in an illegal enterprise is equivalent to an opinion of his or her guilt or innocence. See Fleishman, 684 F.2d at 1335-36. Nor is it damaging to the Government's proffer that Agent Tellis based his testimony on wholly innocent conduct; indeed, the testimony may be helpful to the jury for that very reason. See Espinosa, 827 F.2d at 612; Fleishman, 684 F.2d at 1336. The district court acted within its discretion in admitting the testimony.

Triplett contends that the district court erred in instructing the jury that evidence of flight could be used as evidence of consciousness of guilt. We review the decision to submit a particular instruction for abuse of discretion. United States v. Feldman, 788 F.2d 544, 555 (9th Cir. 1986), cert. denied, 107 S. Ct. 955 (1987).

"Evidence of flight is generally admissible as evidence of consciousness of guilt and of guilt itself." United States v. Harris, 792 F.2d 866, 869 (9th Cir. 1986). Its probative value depends upon the facts and circumstances of each case, and is ultimately a question of fact for the jury. Id.; United States v. Tille, 729 F.2d 615, 622 (9th Cir.), cert. denied, 469 U.S. 845 (1984).

Special Agent McIntyre testified that she attempted to locate Triplett after the execution of the search warrant on Womack's property. She indicated that an arrest warrant had been issued and a search warrant executed on what was believed to be his residence at the time. She testified that she contacted relatives, and the U.S. Marshal's office in California, as well as the Missouri Highway Patrol after receiving information that he had been involved in an accident there, and the Mississippi Bureau of Narcotic enforcement after learning that he owned property in Mississippi. The district court's decision to submit the flight instruction was not an abuse of discretion.

IV. The Admission of Documents as "Indicia of Occupancy"

Triplett objected at trial to the admission of certain documents bearing his name that agents uncovered while executing a search warrant at a trailer. The court admitted the documents as "indicia of occupancy." Triplett asserts that these documents should have been excluded as hearsay.² 

A written out of court statement is hearsay only if it is "offered in evidence to prove the truth of the matter asserted." Fed.R.Evid. 801(c). The documents to which Triplett objects consisted of a check, a motel receipt, and a postal money order, all bearing his name. However, the court did not admit these documents to prove that Triplett purchased something with the check, paid for the motel room, or sent the money order (i.e. for the truth of what the documents assert). Instead, the court admitted them as evidence that Triplett occupied the trailer. The documents are not hearsay by definition. See United States v. Mejias, 552 F.2d 435, 446 (2d Cir.) (evidence of hotel receipt and luggage invoice not hearsay when offered to suggest connection with hotel and luggage seized therefrom, and not to prove payment of hotel bill or purchase of luggage), cert. denied, 434 U.S. 847 (1977).

The Government then used this proof of occupancy to argue Triplett's connection with three receipts, also found at the trailer, for chemicals purchased from Sierra Chemical. The purchases reflected by these receipts were found at the drug laboratory. The strength of the connection established by the Government affects the weight of the evidence but not its admissibility. The trial court's decision to admit the evidence implicitly includes its finding of relevancy, see Harris, 792 F.2d at 869, which this court reviews for an abuse of discretion. Once admitted, its probative value is a question of fact for the jury.³  See id.

Finally, Triplett asserts that placing the documents in the trailer is "nonverbal conduct" and thus a statement within the meaning of Fed.R.Evid. 801(a). He argues that we should interpret the placing of the documents in the trailer as a nonverbal assertion that he lives or lived there. However, the Rule 801(a) definition of "statement" includes only nonverbal conduct "intended by the person as an assertion." See United States v. Hensel, 699 F.2d 18, 31 (1st Cir.), cert. denied, 461 U.S. 958 (1983). Triplett cannot reasonably argue that whoever placed the documents in the trailer did so intending to assert occupancy. See id. Such nonverbal conduct does not fall within the Rule 801(a) definition of statement, and thus cannot be hearsay under Rule 801(c).

AFFIRMED.