Unpublished Disposition, 896 F.2d 1370 (9th Cir. 1989)

MEMORANDUM^** 

Defendants Tracy Ates and Sherry Rose appeal their convictions for conspiracy to manufacture and distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a) (1) and 846, and possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a) (1). Ates appeals on the grounds of insufficiency of the evidence; variance, in that crystal methamphetamine is not a Schedule II controlled substance; and ineffective assistance of counsel. Rose contends that the district court's overruling her objection to the prosecutor's invitation to the jury during closing argument to compare handwriting on two exhibits denied her a fair trial. We affirm the convictions.

FACTUAL BACKGROUND

On May 16, 1988, three Sacramento area police officers established surveillance at 815 Northey Drive, Sacramento, in an attempt to execute felony arrest warrants for co-defendant Timothy Oller. Sherry Rose is the principal occupant of this house, which her father owns, and has sole control of the premises. After observing Rose, Oller, and co-defendant Robin Watts enter the house at about 2:00 p.m., the officers surrounded the house. Officer Geoffrey Winford approached the door and identified himself. The door was opened, Winford entered, and informed Rose and Watts that he was looking for Oller. Rose stated that "he [Oller] went out back." While inside the house, Winford noticed a strong chemical odor and observed in a bathroom through an open door pumps, generators, and hoses. Winford also heard loud crashing noises from the back. Oller fled the house through an open back window and was apprehended by Officer Augustine Falcon. Ates was observed exiting through the same window by Officer Guy Wassather, who pursued Ates on foot. Ates threw away a knife as he ran, and, when apprehended, was in possession of a formula for methamphetamine manufacture and about 2.5 grams of the drug.

Winford, who had left the house to assist in Oller's arrest, re-entered to secure the premises and search for other suspects. During his second entry, Winford observed, in plain view in the north bedroom and in the northwest bedroom, items of laboratory equipment associated with the manufacture of methamphetamine. In a search conducted subsequently pursuant to a warrant by Drug Enforcement Administration Special Agent F. Deane Magers, Jr., a variety of items used in the illicit manufacture of methamphetamine and a clandestine methamphetamine laboratory were discovered in the house. Fingerprints belonging to Ates were identified on a dish in the laboratory room from which methamphetamine was seized, on a 400ml flask which was found to have contained methamphetamine, and on a 300ml flask and a Buchner funnel from the laboratory room.

At trial, defendant Oller testified for the defense. He stated that he had undertaken the methamphetamine production without the participation of the other defendants. A close friend of Rose, Oller had given her money to stay at a motel, away from an abusive boyfriend, while Oller stayed in the house. Oller brought the laboratory equipment to the house about two to three days before the arrests. Rose introduced evidence to support her contention that she had been staying at a motel while Oller was producing methamphetamine. After dismantling the laboratory in the early morning on the day of the arrests, Oller encountered Ates and Watts at a "7-11" store. He invited the two to return with him to Rose's house, where Oller showed Ates the drugs and equipment. Ates and Watts remained at the house until the arrests.

As part of its case against Rose, the Government introduced several pieces of documentary evidence. Government Exhibit 29 consisted of three documents. The first was an undated handwritten note on pink paper stating:

"Steve

Went to pay off some debts thats [sic] been owed.

Don't know how long till I get back.

If anyone calls (I just went to take care of business [sic] and thats [sic] it.

Please watch my dog.

Thanks

S.R."

Special Agent Magers initially testified that these documents were found in the northeast bedroom, but later testified that they were discovered in the north bedroom.

Government Exhibit 33 consisted of three documents, including handwritten "pay and owe" sheets or drug ledger, an envelope postmarked August 27, 1987, from Natomas Animal Hospital, Inc., and an envelope postmarked April 21, 1988, from William Peacock, both addressed to Sherry Rose at the Northey Drive address. These items were found in the northeast bedroom. The court admitted Exhibits 19 and 33 without objection from the defendants.

During closing argument, the court overruled Rose's objection to the prosecutor's suggestion that the jury compare the handwriting on the pink note with that on the drug ledger to determine if Rose was the author of the ledger. The district judge specifically instructed the jury that they were to reach a decision based only on the evidence admitted at trial, and that the prosecutor's statements and arguments were not evidence. The jury found both Rose and Ates guilty of conspiracy to manufacture and distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a) (1) and 846, and possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a) (1).

ATES

Ates contends that the evidence produced at trial was insufficient to support his conviction. The conviction must be affirmed if, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. United States v. Jackson, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560; United States v. Guzman, 849 F.2d 447 (9th Cir. 1988).

B. CONSPIRACY TO MANUFACTURE AND DISTRIBUTE METHAMPHETAMINE

The essential elements of a conspiracy are an agreement to accomplish an illegal objective, coupled with one or more acts in furtherance of the illegal purpose, and the requisite intent necessary to commit the underlying substantive offense. United States v. Penagos, 823 F.2d 346, 348 (9th Cir. 1987). The agreement to accomplish an illegal objective may be inferred from circumstantial evidence. United States v. Guzman, 849 F.2d at 448.

Viewing the evidence in the light most favorable to the prosecution, a reasonable jury could conclude that Ates had agreed with co-defendants Oller and/or Rose to manufacture and distribute methamphetamine. Oller had been manufacturing methamphetamine, intending to sell it, in a clandestine laboratory at Rose's house. Substantial circumstantial evidence supports the inference that Ates agreed to participate in this activity. In particular, Ates was present at the site of the clandestine laboratory on May 16, 1988; he and Oller were present in the room containing equipment and finished methamphetamine when the officers arrived; his fingerprints were found on pieces of equipment used to produce the drug, including two pieces of glassware which actually contained methamphetamine; he fled the house at the approach of police officers, by jumping out a window; and he possessed on his person at arrest a formula for methamphetamine manufacture. A rational jury could therefore disbelieve Oller's testimony that he was the sole person involved, and conclude that Ates conspired with Oller and possibly others to manufacture and distribute methamphetamine.

C. POSSESSION OF METHAMPHETAMINE WITH INTENT TO DISTRIBUTE

To sustain a conviction for possession with intent to distribute, the Government must prove that the defendant (1) knowingly (2) possessed the controlled substance (3) with the intent to distribute it. Unitd States v. Walitwarangkul, 808 F.2d 1352, 1353 (9th Cir.), cert. denied, 481 U.S. 1023, 107 S. Ct. 1909, 95 L. Ed. 2d 515 (1987). A defendant is not guilty of possession unless he knew contraband was present and was capable of exercising dominion and control over it. United States v. Penagos, 823 F.2d at 350. Dominion and control may be demonstrated by proof of actual physical custody or of constructive possession. United States v. Batimana, 623 F.2d 1366, 1369 (9th Cir.), cert. denied, 449 U.S. 1038, 101 S. Ct. 617, 66 L. Ed. 2d 500 (1980). Both possession and knowledge can be established by circumstantial evidence. United States v. Castillo, 866 F.2d 1071, 1086 (9th Cir. 1988).

From Ates' fingerprints on the laboratory equipment containing methamphetamine and used in its production, the jury could reasonably conclude not only that Ates knew that the contraband was present, but that he was capable of exercising dominion and control over it. Oller testified that he produced the methamphetamine in order to sell it. In the absence of direct evidence of Ates' intent, the jury could reasonably infer Ates' intent to distribute from the circumstantial evidence showing his involvement with a laboratory capable of producing quantities of methamphetamine consistent with a purpose of distribution, and from the evidence suggesting his connection with Oller. Ates' possession of a formula for methamphetamine manufacture further supports this conclusion.

Ates contends that his situation is analogous to those defendants whose convictions were reversed in United States v. Penagos, 823 F.2d 346 (9th Cir. 1987), and United States v. Lopez, 625 F.2d 889 (9th Cir. 1980). It is not. The evidence at trial established that Ates was aware of the presence of methamphetamine, that he handled the drug production equipment, and that he possessed a formula for manufacturing methamphetamine and 2.5 grams of the drug on his person at arrest. This behavior is not consistent with that of "an innocent person having no stake or interest in drug transactions." Penagos, 823 F.2d at 349-50.

II. CLASSIFICATION OF METHAMPHETAMINE AS A SCHEDULE II CONTROLLED SUBSTANCE

Ates contends on appeal that the proof at trial varied from the charges in the indictment, because the evidence at trial involved only crystal methamphetamine, which falls under Schedule III of 21 U.S.C. § 812, with lesser penalties attached, while the indictment charged possession with intent to distribute of a Schedule II substance. While conceding that the Drug Enforcement Agency has authority to reschedule controlled substances, Ates maintains that the DEA has never properly exercised its authority to reclassify crystal methamphetamine to Schedule II. But see United States v. Jones, 852 F.2d 1235, 1236-37 (9th Cir. 1988). Ates further argues that the original rescheduling of all forms of methamphetamine to Schedule II by the Director of the Bureau of Narcotics and Dangerous Drugs ("BNDD") in 1971 was ineffectual because the BNDD lacked authority to reschedule controlled substances.

We have recently considered and rejected this argument, finding that the Attorney General had properly subdelegated to BNDD his authority to reschedule controlled substances, and that BNDD made the findings required to reschedule methamphetamine in 1971. United States v. Kendall, --- F.2d ----, No. 88-3279 (9th Cir. filed Oct 12, 1989), slip op. at 12676-78.

Ates argues that he was denied effective assistance of counsel, in violation of the sixth amendment, because his trial attorney failed to move to suppress the evidence seized as a result of the accidental discovery by the police of evidence of methamphetamine manufacture at the Rose house.

Although the customary procedure for raising a claim of ineffective assistance of counsel in a federal criminal trial is by collateral attack upon the conviction under 28 U.S.C. § 2255, such a challenge may be raised on direct appeal when, as here, the record is sufficiently developed to permit determination of the issue. See United States v. Anderson, 850 F.2d 563, 565 (9th Cir. 1988); United States v. Birges, 723 F.2d 666, 670 (9th Cir.), cert. denied, 466 U.S. 943, 104 S. Ct. 1926, 80 L. Ed. 2d 472 (1984).

To prevail on an ineffective assistance claim, Ates must prove both that counsel's representation fell below an objective standard of reasonableness, and that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Kimmelman v. Morrison, 477 U.S. 365, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986); Lang v. Callahan, 788 F.2d 1416, 1418 (9th Cir. 1986). A strong presumption must be indulged that counsel's performance fell within a wide range of reasonable professional assistance. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

Because fourth amendment rights are personal rights, the exclusionary rule will protect only those parties whose reasonable expectations of privacy have been violated. United States v. Salvucci, 448 U.S. 83, 92, 100 S. Ct. 2547, 65 L. Ed. 2d 619 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978). Thus, as a threshold matter, Ates must establish that he had a legitimate expectation of privacy in the residence at 815 Northey Drive. It is difficult for a defendant to establish that he had a reasonable expectation of privacy in the residence of a third party. See United States v. Robinson, 698 F.2d 448, 454 (D.C. Cir. 1983). Factors to be weighed include whether the defendant owns the property searched and/or seized, Salvucci, 448 U.S. at 92, whether he has a possessory interest in the property, whether he has the right to exclude others from that place, whether he has exhibited a subjective expectation that it would remain free from governmental invasion, and whether he was legitimately on the premises. Robinson, 698 F.2d at 454; see also Rawlings v. Kentucky, 448 U.S. 98, 100 S. Ct. 2556, 65 L. Ed. 2d 633 (1980); United States v. Haydel, 649 F.2d 1152 (5th Cir.Unit A 1981), cert. denied, 455 U.S. 1022, 102 S. Ct. 1721, 72 L. Ed. 2d 140 (1982).

Clearly, Ates had no possessory or proprietary interest in the residence. He did not own the house, as did Rose's father, nor did he exercise control over the premises, as did Sherry Rose. Ates did not live at the house. There is no evidence that he had a right to exclude others from the premises. He had no key to the house, nor did he keep personal possessions there. Cf. Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960); United States v. Salvador, 740 F.2d 752, 755 n. 2 (9th Cir. 1984), cert. denied, 469 U.S. 1196, 105 S. Ct. 978, 83 L. Ed. 2d 980 (1985); United States v. Robertson, 606 F.2d 853, 858 n. 2 (9th Cir. 1979). As to whether Ates exhibited a subjective expectation that the house would remain free from governmental invasion and whether he took normal precautions to maintain his privacy, the record is silent. Arguably, Ates might have standing to object to the search and seizure as having been legitimately on the premises as an overnight guest of Oller. See United States v. Echegoyen, 799 F.2d 1271, 1277 (9th Cir. 1986); United States v. Guerrero, 756 F.2d 1342, 1348 n. 2 (9th Cir.), cert. denied, 469 U.S. 934, 105 S. Ct. 334, 83 L. Ed. 2d 270 (1984); Salvador, 740 F.2d at 755 n. 2; Robertson, 606 F.2d at 858 n. 2.

Even assuming arguendo that Ates had a reasonable expectation of privacy in the Rose residence, however, he has failed to establish that the police search was unlawful. First, Sherry Rose, who claimed sole control of the premises, gave her consent to a search. Ates contends that he "would have been long gone" by the time this consent was given. In light of the fact that he was in police custody after having fled through a window at the approach of Officer Winford and having discarded a knife while pursued by Officer Wassather, this contention is unpersuasive. Second, Agent Magers obtained a search warrant for the premises. Ates has not demonstrated that this warrant was in any way invalid.

In view of the foregoing considerations, Ates' trial counsel could reasonably have determined that a suppression motion would have been strategically unwise, a waste of legal resources, and/or futile. Such a conclusion is well within the wide range of reasonable professional assistance. See Strickland, 466 U.S. at 689. We therefore affirm Ates' conviction.

ROSE

Rose contends on appeal that she was denied a fair trial by the district court's overruling her objection to the prosecutor's suggestion during closing argument inviting the jury to compare handwriting on two exhibits. We review the actions of the trial court in controlling closing argument for an abuse of discretion. United States v. Makhlouta, 790 F.2d 1400, 1403 (9th Cir. 1986); United States v. Guess, 745 F.2d 1286, 1288 (9th Cir. 1984), cert. denied, 469 U.S. 1225, 105 S. Ct. 1219, 84 L. Ed. 2d 360 (1985).

It is well established that the jury may make handwriting comparisons between two admitted documents, with or without the aid of expert opinion. United States v. Woodson, 526 F.2d 550 (9th Cir. 1975). Only in "extreme or unusual circumstances" are such comparisons improper. Id. at 551. " 'Extreme or unusual circumstances' involve situations where the authenticity of the handwriting is the primary issue in the case, as where forgery is alleged." United States v. Jenkins, 785 F.2d 1387, 1395 (9th Cir. 1986), cert. denied, 479 U.S. 855, 107 S. Ct. 192, 93 L. Ed. 2d 125 (1986).

The general rule is that handwriting comparisons by an expert witness or by the factfinder must be based upon comparison with an authenticated exemplar of the subject's handwriting. See McCormick, Evidence, Sec. 221 (3d ed. 1984). "Where documents are admitted for purposes other than handwriting comparison, they may be used by the jury as a standard for handwriting comparison if the handwriting is admitted or proved to be that of the alleged author." Williams v. Conger, 125 U.S. 397, 411-15, 8 S. Ct. 933, 31 L. Ed. 778 (1888); United States v. American Radiator & Sanitary Corp., 433 F.2d 174, 193 (3d Cir.), cert. denied, 401 U.S. 948, 91 S. Ct. 928, 28 L. Ed. 2d 231 (1970). Both Government Exhibit 29 (containing the pink "S.R." note) and Government Exhibit 33 (containing the drug ledger) were admitted without objection by the defendants. Indeed, even on appeal Rose does not suggest that either exhibit should not have been admitted. The issue, therefore, is whether the pink note with the initials "S.R." was "admitted or proved" to be the handwriting of Sherry Rose, so that it would constitute an exemplar with which the jury might compare the drug ledger.

To admit evidence under Fed.R.Evid. 901, the trial judge must determine whether there is prima facie evidence, either direct or circumstantial, that the document is what its proponent claims it is. Alexander Dawson, Inc. v. N.L.R.B., 586 F.2d 1300, 1302 (9th Cir. 1978). Once the prima facie authentication has been made and the judge has admitted the evidence as what it purports to be, i.e., an exemplar, it is the responsibility of the factfinder to determine whether the document is in fact an authentic example of the defendant's handwriting. " [T]he weight of authority requires only that a prima facie case of the alleged author's identity be established for the documents to be admitted. The ultimate issue of their authorship and the probative weight to be afforded them is for the jury." American Radiator, 433 F.2d at 192 (citations omitted). "The scope of appellate review upon this issue is confined to determining whether the admission constituted abuse of discretion in determining that a prima facie case has been made out." Carbo v. United States, 314 F.2d 718, 743 (9th Cir. 1963), cert. denied, 377 U.S. 953, 84 S. Ct. 1625, 12 L. Ed. 2d 498 (1964). In American Radiator, the Third Circuit stated the proper standard: there should be sufficient evidence so that a jury finding of genuineness would not be subject to reversal as against the weight of the evidence. 433 F.2d at 193.

In overruling Rose's objection, the trial judge implicitly determined that a prima facie case had been made that the pink note had been written by Sherry Rose. There was sufficient evidence to establish that this was not an abuse of his discretion. Most significantly, the note was signed using Sherry Rose's initials. There is no evidence in the record of any other person associated with the defendants having these initials. Further, the note was found among other correspondence belonging to Rose. The note's reference to the author's dog is noteworthy in that the envelope from Natomas Animal Hospital suggests that Rose, like the note's author, had an animal.

Once the note was admitted, it was the responsibility of the jury to weigh all the evidence in determining whether Rose wrote the pink note. If the jury concluded that the pink note was indeed written by Rose, the jury could then have used the note as a handwriting exemplar to determine whether Rose also authored the drug ledger found in her house. Such a conclusion would not be subject to reversal as against the weight of the evidence, in light of the evidence introduced by the Government and the complete lack of rebuttal evidence by Rose. Cf. United States v. Jenkins, 785 F.2d at 1395 (defendant could have offered evidence to rebut authenticity of signatures to lessen "the danger that jurors will assign improper weight to their comparisons of handwriting samples."). Accordingly, we affirm Rose's conviction.

AFFIRMED.