Unpublished Disposition, 852 F.2d 1290 (9th Cir. 1988)

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US Court of Appeals for the Ninth Circuit - 852 F.2d 1290 (9th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,v.James Charles McMURTRY, Defendant-Appellant.

No. 87-3048.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 6, 1988.Decided July 18, 1988.

Before HUG, FLETCHER and DAVID A. NELSON, Circuit Judges.


MEMORANDUM* 

Appeal from the United States District Court for the District of Oregon; James M. Burns, District Judge, Presiding.

James Charles McMurtry appeals his conviction for conspiracy to manufacture methamphetamine in violation of 21 U.S.C. §§ 841(a) (1) and 846. We affirm.

FACTS

In late 1984 and 1985, McMurtry was addicted to methamphetamine or "speed," a Schedule II controlled substance. In March 1985, prior to the existence of the conspiracy with which he was charged, McMurtry ordered various chemicals from a chemical company. The order was brought to the attention of Special Agent Landers of the DEA, who surmised that the combination of chemicals would be used to manufacture methamphetamine. Landers confronted McMurtry, who admitted that he had ordered the chemicals for a friend who planned to manufacture methamphetamine.

Between August 1985 and January 1986, Landers was notified by a different chemical company of an order for equipment and for certain chemicals which, though not controlled substances in themselves, were "precursors" used to manufacture methamphetamine. Though the orders were placed under the name "Joe Carlson," Landers' investigation revealed that McMurtry's auto license plate number turned up in connection with the orders. In January 1986, Landers observed McMurtry placing an order for precursor chemicals. Finally, in March, after learning that "Joe Carlson" had ordered five gallons of methylamine, a precursor used in the last stages of methamphetamine processing, Landers obtained a warrant authorizing him to place a tracking device in the box containing the chemical. In this way, the methylamine, which was picked up by McMurtry and stored temporarily in McMurtry's father's auto shop, was eventually traced to the residence of Larry Parrott.

A search warrant was obtained for Parrott's residence on May 10. The warrant included an authorization to search the person of McMurtry. During the search of the residence, police discovered a methamphetamine lab with several pounds of recently manufactured methamphetamine, as well as other drugs and a supply of ziplock baggies used for subdividing and packaging drugs for sale. Police also found over $30,000 cash in Parrott's house. Parrott was arrested and immediately confessed, implicating McMurtry as the instigator of the manufacturing conspiracy as well as the supplier of the chemicals, glassware, and "recipes" for making methamphetamine.

The next day, McMurtry's residence was searched by Paul Frank, McMurtry's probation officer, and police officers including Deputy Schneider of the Multnomah County Sheriff's Office. They discovered a strong chemical smell similar to that associated with methamphetamine manufacture, a bottle of a precursor chemical, a face mask frequently worn by methamphetamine "cooks" (as well as by people doing heavy sanding), and a flask containing residue of "P-2-P," a precursor chemical that is itself a controlled substance.

At trial, Parrott was the government's key witness. He testified that he and McMurtry had agreed in August 1985 that Parrott would manufacture methamphetamine, if McMurtry would supply the materials and allow Parrott to keep a fraction of the drug for himself. Parrott claimed that he agreed to this only to supply his own addiction, and that he manufactured the drug twice--once in November 1985 and again in May 1986 when the police raided the lab.

The government also presented testimony from Deputy Schneider and Paul Frank, regarding the search, as well as testimony from Larry Monagan, another probation officer. Monagan testified that he had interviewed McMurtry at an in-patient drug rehabilitation clinic where McMurtry was enrolled in October and November 1985. Monagan confronted McMurtry regarding the latter's failed urine-drug test and McMurtry had explained that he had not used methamphetamine, but had manufactured it--and, indeed, was the biggest manufacturer in North Portland.

The court allowed the probation officers to testify over the objection of defense counsel, but ruled that their testimony would be circumscribed so as not to divulge that they were probation officers (and thereby imply that McMurtry, who did not take the stand, had a criminal record). However, just after the ruling, but before the probation officers took the stand, Deputy Schneider testified and divulged to the jury that Paul Frank was "the probation officer." Defense counsel declined the court's offer of curative instructions, arguing that such would only highlight the mistake, but moved for a mistrial, which the court denied.

The defense contended that although McMurtry had supplied Parrott with the five gallons of methylamine, he was not involved in a conspiracy with Parrott: McMurtry supplied the chemical only at Parrott's insistence in order to repay a loan from Parrott. McMurtry supposedly believed that Parrott intended not to manufacture methamphetamine, but to bury the methylamine and then resell it at an inflated black-market price if the Oregon legislature should outlaw precursor chemicals. This evidence came in through the testimony of McMurtry's girlfriend. The rest of the defense case was to establish that McMurtry was chronically broke and did not have the kind of cash one would expect of a large-scale methamphetamine producer/dealer. McMurtry's counsel also brought out on cross-examination that Parrott's financial situation suggested unaccounted-for income and that, contrary to Parrott's initial statement to police, at least some chemicals had been provided to Parrott by Bill Jordan, Parrott's live-in lover. Finally, the defense tried to attribute the chemical smell in McMurtry's residence to an unsuccessful attempt by McMurtry to manufacture P-2-P before the alleged conspiracy.

The jury convicted McMurtry after deliberating for approximately seven hours, and McMurtry was sentenced to four years imprisonment. On appeal, McMurtry contends that the trial court abused its discretion in failing to declare a mistrial after a witness disclosed that McMurtry's probation officer was present at McMurtry's arrest, and in refusing to exclude the testimony of McMurtry's two probation officers. McMurtry also argues that the trial court erred in allowing a deputy sheriff to give expert testimony concerning the odor in McMurtry's residence.

DISCUSSION

The trial court's refusal to declare a mistrial is reviewed for an abuse of discretion. United States v. Vincent, 758 F.2d 379, 382 (9th Cir. 1985). Where evidence indicating the defendant's prior criminal record comes in inadvertently, reversal is not appropriate unless it is more probable than not that the error materially affected the jury's verdict. United States v. Ezzell, 644 F.2d 1304, 1305-06 (9th Cir. 1981). The trial court's decisions regarding the admissibility of evidence are reviewed for an abuse of discretion. United States v. Butcher, 557 F.2d 666, 670 (9th Cir. 1977).

Evidence of a defendant's past crimes is inadmissible unless (1) it is relevant to prove motive, opportunity, intent, preparation, plan, knowledge, identity or absence of motive or accident; or (2) the defendant has placed his character in evidence by testifying. Fed.R.Evid. 404; United States v. Pavon, 561 F.2d 799, 802 (9th Cir. 1977). If direct evidence of prior crimes cannot be introduced, then evidence creating a strong inference that the defendant has committed past crimes must also be excluded. Pavon, 561 F.2d at 802. Testimony indicating that McMurtry was on probation comes within this category. Id. This circuit allows probation or parole officers to testify where there is no adequate alternative way to get relevant evidence before the jury, and the trial court takes appropriate steps to handle the testimony in such a manner that the jury will not know that the witness is a probation or parole officer. See id. at 802-03; Butcher, 557 F.2d at 670; see also United States v. Calhoun, 544 F.2d 291 (6th Cir. 1976). Here, McMurtry contends that a mistrial should have been declared when a government witness let slip the probation officer's identity before the jury; and, further, that the trial court abused its discretion in allowing the probation officers to testify.

During trial, the district court held a brief hearing outside the presence of the jury, in which the two probation officers were examined. The court ruled that the probation officers could testify, so long as neither was identified as a probation officer. This ruling was made in the presence of Deputy Schneider, the next witness to appear before the jury, who had arrested McMurtry in tandem with one of the probation officers. Neither the court nor counsel expressly cautioned Schneider to adhere to the judge's ruling. With the jury present, the prosecutor examined Schneider about McMurtry's arrest, and this colloquy ensued:

QUESTION: Do you know if an individual brought anything down from the attic?

ANSWER: Yes.

QUESTION: Who was that individual? Just his name, please? Do you know what his name was it Paul Frank?

ANSWER: The probation officer, I believe.

* * *

* * *

QUESTION: This individual's name was Paul Frank?

ANSWER: Yes.

Defense counsel timely moved for a mistrial, rejecting the court's offer for curative instructions, since that could only focus more attention on the defendant's probation status and his prior criminal record. The defendant's motion was denied, as was his renewed motion for a mistrial at the close of the case.

McMurtry argues that this error denied him a fair trial and that a new trial is the only appropriate remedy. Admission of evidence of a past crime notwithstanding the trial court's ruling may in some circumstances be presumed to undermine the fairness of the trial and require a new trial. See Marshall v. United States, 360 U.S. 310 (1959) (jurors exposed to newspaper stories detailing defendant's past felony convictions); United States v. Calvert, 498 F.2d 409 (6th Cir. 1974) (prosecution introduced superfluous fingerprint matchup using prints from defendant's criminal record file taken 10 years before current indictment); United States v. Rudolph, 403 F.2d 805 (6th Cir. 1968) (prosecutor elicited testimony from witness about defendant's prior conviction); United States v. Rinaldi, 301 F.2d 576 (2nd Cir. 1962) (same). In each of these cases, the jury was exposed to direct, detailed evidence of the criminal record, and in most cases the prosecutor bore responsibility for the occurrence. Here, by contrast, the exposure was brief, incidental, not repeated,1  not detailed, and not the fault of the prosecutor. See Ezzell, 644 F.2d at 1305-06. Under these circumstances, harmless error analysis applies. Id.

A review of the trial transcript reveals some weakness in the government's case, in that there were substantial reasons to disbelieve the leading government witness, Larry Parrott. Parrott was a co-conspirator who had negotiated a favorable plea agreement in exchange for his cooperation, and his testimony, on its face, strains credulity in several respects. Essentially, Parrott attempted to portray McMurtry as the impetus behind the conspiracy and the person who stood to profit from the manufacture and dealing of methamphetamine; yet it was Parrott who had the chemicals, equipment, and recipes, who did the "cooking," who had the ziplock baggies, who had $30,000 cash lying around, and who had the lifestyle indicative of substantial unreported income. It is also clear that even Parrott's immediate confession to police, which implicated McMurtry as the instigator, somewhat exaggerated McMurtry's role compared to what came out at trial.

If, as McMurtry contends, the trial, in fact, turned on a credibility contest between Parrott and Karen Pierce (McMurtry's girlfriend and main defense witness), then the prejudice stemming from revealing an inference of McMurtry's criminal record may well have materially affected the verdict (over which the jury deliberated approximately seven hours). We well might have cause to reverse if that were the case. However, even if the jury disbelieved Parrott completely, the other evidence against McMurtry was overwhelming. It was undisputed that Parrott attempted to manufacture methamphetamine and that McMurtry supplied him with at least some precursor chemicals (the five gallons of methylamine). Even if Parrott was the "mastermind," McMurtry would be guilty if he provided the chemicals knowing what they would be used for. Karen Pierce's testimony, to the effect that McMurtry believed Parrott wanted the chemicals only to bury and resell them after they became illegal, was not believable by any reasonable juror in light of the other evidence in the case. There was testimony from both government and defense witnesses that McMurtry was a methamphetamine addict and had attempted to make at least a precursor (P-2-P) for methamphetamine production. There was also testimony from defense witnesses, including Pierce, that McMurtry frequently lied to them and concealed from them his connection with drugs. Thus, there was more than ample evidence that McMurtry knew what the methylamine he gave Parrott would be used for, thus clearly linking McMurtry to the conspiracy.

In light of the evidence of McMurtry's guilt, the inadvertent identification of Paul Frank as a probation officer was, at most, harmless error.2 

A trial court may allow probation officers to testify if there is no adequate alternative means to get relevant evidence before the jury and the court takes steps to ensure that the witnesses are not revealed to the jury to be probation officers. Pavon, 561 F.2d at 802-03; Butcher, 557 F.2d at 670. The district court complied procedurally with Pavon and Butcher by requiring Frank and Monagan to be examined first without the jury present.

Arguably, Frank's testimony was unnecessary, because it simply repeated facts put in evidence by Deputy Schneider. The government's suggestion that only Frank had first-hand knowledge of where the flask and mask were found is unpersuasive: Schneider was on hand at the search and could have testified about where they were found; moreover, Frank could have been held in reserve to be called only if defense counsel made a hearsay objection (which would have been unlikely, as the location of the flask and mask was not a point of contention). It appears to have been error to allow Frank to testify, but, for the reasons stated in section A, the error was harmless.

McMurtry also argues that the substance of Monagan's testimony could have been presented by Judy Lair, a drug treatment counselor who was present at Monagan's meeting with McMurtry.3  Monagan testified that McMurtry "admitted" manufacturing methamphetamine at a time prior to the conspiracy. McMurtry's counsel argues that on cross-examination, she would have tried to show that McMurtry lied about that in order to convince his probation officer that he was not still using speed, only producing it; however, she was hampered in her cross-examination by the need not to reveal Monagan's status as McMurtry's probation officer. See Calhoun, 544 F.2d at 296.

This argument is unpersuasive. If Lair had testified, the same problem would have been present if, indeed, the explanation for McMurtry's statement was his wish to mislead his probation officer. In any case, it is doubtful that Monagan or Lair could have done anything more than speculate as to McMurtry's motive to pretend to be a methamphetamine producer, a speculation which defense counsel could and did argue to the jury. McMurtry's real argument may be that the whole episode was more prejudicial than probative. However, the evidence, whether it tends to show McMurtry as a user or a manufacturer, is relevant to show McMurtry's knowledge of methamphetamine and tends to rebut the claim that McMurtry simply believed the methylamine he provided was to be buried. The trial court did not abuse its discretion in allowing Monagan to testify.

During trial, Parrott testified that McMurtry provided him with the "P-2-P" which Parrott used to manufacture methamphetamine in May 1986. The defense denied this claim and presented evidence that McMurtry had unsuccessfully tried to make P-2-P ten months before the arrests. The government sought to corroborate Parrott's testimony with testimony by Deputy Schneider that McMurtry's residence exuded a smell "very similar in intensity and duration" to the "particularly strong and very fresh odor of manufactured methamphetamine" at Parrott's house. Schneider also testified that he could distinguish the smell of phenylacetic acid from that of "methamphetamine or P-2-P." Arguably, Schneider's testimony implies--though it does not state--that Schneider smelled P-2-P at McMurtry's residence and possibly that it was fresh.

McMurtry contends that Schneider was not qualified, under Fed.R.Evid. 702, to give expert testimony regarding the nature and duration of the smells of methamphetamine production, as he had searched only three illegal methamphetamine labs in over seven years.

If admitting this testimony was erroneous, the error was harmless. See United States v. Christophe, 833 F.2d 1296, 1299 (9th Cir. 1987). McMurtry did not contest the presence of P-2-P smells or traces in his residence, only the timing of the (attempted) manufacture. The presence of P-2-P in McMurtry's apartment, whether stale or fresh, tends to show McMurtry's knowledge of methamphetamine processing. As noted above, even if the jury believed that McMurtry had not supplied Parrott with P-2-P, it still could have convicted him on the basis of his supplying methylamine and his awareness of Parrott's intended use for it.

AFFIRMED.

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This disposition is not appropriate for publication and may not be cited to or by the Courts of this Circuit except as provided by Circuit Rule 36-3

 1

In her closing argument, defense counsel inadvertently identified Larry Monagan as a probation officer

 2

Frank was not identified as McMurtry's probation officer. The jury may not have inferred that merely from the fact that Frank participated in McMurtry's arrest

 3

The government responds only that the defense should have called Lair as a witness or at least shown that Lair could have given the substance of Monagan's testimony. However, there is no support for the proposition that the defendant bears the burden to produce alternatives to probation officer testimony; the burden, rather, is on the prosecutor and the court. See Pavon, 561 F.2d at 802-03