Unpublished Disposition, 912 F.2d 470 (9th Cir. 1989)

MEMORANDUM^** 

James Alonzo Elms (Elms) and William Albert Hetzer (Hetzer) appeal from their convictions, following a jury trial, for conspiracy to manufacture methamphetamine, in violation of 21 U.S.C. §§ 841(a) (1) and 846. We affirm.

PERTINENT FACTS

Elms, Hetzer, William Vester Anders and Charles Ernest Pitman were each charged with one count of conspiracy to manufacture methamphetamine in violation of 21 U.S.C. §§ 841(a) (1) and 846.

The evidence adduced at trial showed that William Daniel Alexander and Elms began operating a methamphetamine laboratory in Las Vegas, Nevada in the middle part of 1987. In late August 1988, Elms directed Alexander to move the laboratory from Las Vegas to 22300 Fargo Avenue in Lemoore, California (the Fargo Avenue residence). When Elms' landlord became suspicious as a result of the fumes caused by manufacturing activities, Elms, Anders, and Alexander moved the laboratory into a small trailer located at 4257 West Hammond Avenue (the Hammond residence).

Officers of the Fresno County Sheriff's office obtained a search warrant for the Fargo residence on September 14, 1988. When the warrant was executed on that same day, Alexander was arrested outside the Hammond residence. On September 16, 1988, Alexander agreed to cooperate with the authorities.

On September 19, 1988, Alexander wore an electronic recording device to a meeting that he arranged with Elms. Alexander informed Elms that the police had found a map of the Hammond residence. Elms replied that they would have to find a place to put the laboratory. On September 20, 1988, Hetzer informed Alexander that the laboratory would be moved from the Hammond residence to a residence in Chowchilla. Elms and Anders then met with Alexander to tell him the laboratory would be moved around 5:30 p.m. that day.

Alexander contacted the authorities regarding Elms' plans to move the laboratory from the Hammond residence. A short time later, Elms, Anders, Hetzer and Pitman arrived at the Hammond residence. After loading Alexander's pick-up truck with the laboratory, Hetzer, Anders, and Pitman left the Hammond residence in their respective vehicles. The surveillance officers placed Pitman, Anders, and Hetzer under arrest. Elms was arrested twenty minutes later.

The jury found Anders and Pitman not guilty. Elms and Hetzer were each convicted of a single count of conspiracy to manufacture methamphetamine. Elms and Hetzer timely appealed.

DISCUSSION

Elms and Hetzer raise the following issues on appeal:

One. The district court erred by admitting Elms' and Hetzer's prior convictions for possession with intent to distribute and conspiracy to distribute methamphetamine.

Two. The district court erroneously instructed the jury on its consideration of evidence of other crimes.

Three. The district court erroneously instructed the jury on the elements of the crime of possession with intent to manufacture a controlled substance.

Elms also contends separately that the district court erred by admitting Alexander's testimony as evidence of Elms' prior manufacturing of methamphetamine, pursuant to Federal Rule of Evidence 404(b).

We discuss each issue and the facts pertinent thereto under separate headings.

At trial, Alexander testified that, in late August 1988, he arrived at the Fargo Avenue residence for the purpose of manufacturing methamphetamine with William Anders and James Elms. Alexander stated that he and Anders were primarily responsible for manufacturing the methamphetamine.

Alexander also testified that he was taught by Elms how to manufacture methamphetamine in Nevada at Elms' laboratory (called KG Industries) in mid-1987. Alexander testified that Elms had been manufacturing methamphetamine in Las Vegas, Nevada for over a year and a half prior to September 1988. Elms' objections to this testimony were overruled. The district court instructed the jury to "merely consider the testimony for the purpose of when the witness learned the process."

Elms contends that the district court erred by admitting the evidence of these prior acts. Alexander's testimony was admitted pursuant to Federal Rule of Evidence 404(b). We review admission of evidence under Federal Rule of Evidence 404(b) for abuse of discretion. United States v. Connors, 825 F.2d 1384, 1390 (9th Cir. 1987).

The government offered Elms' prior acts as direct evidence of the conspiracy charged in the indictment. We may "affirm on any basis supported in the record." Leidholdt v. L.F.P. Inc., 860 F.2d 890, 895 (9th Cir. 1988), cert. denied, 109 S. Ct. 1532 (1989).

"Evidence should not be treated as 'other crimes' evidence when 'the evidence concerning the ["other"] act and the evidence concerning the crime charged are inextricably intertwined.' " United States v. Soliman, 813 F.2d 277, 279 (9th Cir. 1987) (quoting United States v. Aleman, 592 F.2d 881, 885 (5th Cir. 1979)). Thus, "to the extent that evidence of prior and subsequent ... illicit transactions bears on the issue of a defendant's intent to [perpetrate] the specific criminal act charged in the indictment, such evidence can be used to convict a defendant...." United States v. Smith, 832 F.2d 1167, 1170 (9th Cir. 1987); see also United States v. Mundi, 892 F.2d 817, 820 (9th Cir. 1989) (" [T]he evidence [the government] presented was 'inextricably intertwined' with, and 'part of the same transaction' as the conduct alleged in the indictment.").

The indictment charged that Elms and Hetzer, "beginning at a time unknown to the Grand Jury, but not later than on or about September 14, 1988, and continuing thereafter up to and including on or about September 20, 1988, in the County of Fresno, State and Eastern District of California, and elsewhere, did knowingly and intentionally conspire with each other and with other persons unknown to the Grand Jury, to manufacture methamphetamine, a Schedule II controlled substance, in violation of Title 21, United States Code, Sections 846 and 841(a) (1)." The indictment, as drafted, was broad enough to encompass Elms' prior manufacturing of methamphetamine in Nevada. The evidence of prior manufacturing was direct proof of Elms' intent to conspire to manufacture methamphetamine as charged in the indictment. Thus, Alexander's testimony was admissible as direct evidence of the conspiracy charged in the indictment.

As noted above, the district court limited the jury's consideration of this evidence to "when the witness learned the process." This use restriction did not harm Elms. Instead, it deprived the prosecutor of the opportunity to argue that the evidence was admissible to prove the crime charged in the indictment.

The district court did not abuse its discretion by admitting the prior act evidence.

In 1983, Elms and Hetzer were convicted of possession with intent to distribute methamphetamine. The district court admitted Elms' and Hetzer's prior convictions, pursuant to Rule 404(b), to prove their knowing and intentional membership in the conspiracy and the absence of accident or mistake.

Elms and Hetzer contend that the district court erred by admitting evidence of their prior convictions. We review this decision for abuse of discretion. Connors, 825 F.2d at 1390.

Prior convictions are admissible to prove intent pursuant to 404(b) if the past crime is "the same form of intent that the Government seeks to prove in the second case." United States v. McCollum, 732 F.2d 1419, 1424 (9th Cir.), cert. denied, 469 U.S. 920 (1984). Elms and Hetzer were charged in the indictment with manufacturing methamphetamine with intent to distribute, which requires proof of the same intent as their prior convictions. Thus, the evidence of the prior conviction is probative of Elms' and Hetzer's intent to manufacture methamphetamine in this case.

Elms and Hetzer rely on United States v. Powell, 587 F.2d 443 (9th Cir. 1978), for the proposition that " [w]hen a defendant denies participation in the act or acts which constitute the crime, intent is not a material issue for the purpose of applying Rule 404(b)." Id. at 448. Their reliance on Powell is misplaced. In Powell, the defendant took the stand and denied any involvement in the charged conspiracy. Id. at 446. Elms and Hetzer did not take the stand in this matter.

Elms and Hetzer next argue that the district court did not conduct a proper balancing under Rule 403 when it admitted the records of their convictions. As long as it appears from the record as a whole that the trial court adequately weighed the probative value and prejudicial effect of the proffered evidence before its admission, the district court need not have mechanically cited the Rule 403 formula. United States v. Kinslow, 860 F.2d 963, 968 (9th Cir. 1988), cert. denied, 110 S. Ct. 96 (1989). The district court stated that the government's proffered evidence was probative of intent. The district court also implicitly balanced probative value against prejudicial effect, stating that, "on a review of the evidence," it had "no alternative" but to admit the records of the convictions. Our independent review of the record leads us to conclude the district court conducted a proper balancing test under Rule 403.

We conclude that the district court did not abuse its discretion by admitting the records of Elms' and Hetzer's prior convictions.

Elms and Hetzer contend that the district court erred in its instructions to the jury at the conclusion of the case. "This court reviews jury instructions for abuse of discretion, viewing the instructions as a whole." United States v. Wauneka, 842 F.2d 1083, 1088 (9th Cir. 1988).

At the conclusion of the evidence and prior to closing arguments, the district court instructed the jury on its consideration of prior conviction evidence. The instruction stated:

You have heard testimony that some of the defendants in this case have previously committed a crime similar to the one charged here. You may not consider that testimony in deciding whether the defendants so charged committed the crime charged here. However, you may consider it for another purpose. If you are convinced by other evidence that the defendant committed the crime charged here, then you may decide to use this testimony--then you may use this testimony to decide whether the defendant knew at the time what was being done violated the law and whether the defendant acted with the intention to specifically violate the law.

Elms and Hetzer contend that this instruction was misleading because it was not clear that the jury could only consider Alexander's testimony for a limited purpose. The challenged instruction informed the jury that the prior conviction evidence could not be considered by them to prove the crime charged in the indictment. The instruction further directed the jury to consider this evidence solely as probative of knowledge or intent, which are permissible purposes under 404(b). Thus, the instruction was not misleading. See Soliman, 813 F.2d at 279 (the jury should be instructed as to the limited probative effect of evidence introduced for the purpose of showing the defendant's intent).

Elms and Hetzer also argue that the instruction was premature because the jury had not yet examined the evidence of Elms' and Hetzer's prior conviction. The records of the prior convictions were introduced outside the presence of the jury, before the end of the trial. Because the evidence of the prior convictions was not presented to the jury before the court instructed the jury, this was the only opportunity for the court to instruct the jury on its consideration of this evidence. Although Elms and Hetzer do not base their argument on Federal Rule of Criminal Procedure 30, this rule governs the procedure for instructing the jury. Federal Rule of Criminal Procedure 30 provides, in pertinent part, that " [t]he court may instruct the jury before or after the arguments are completed or at both times." Fed. R. Crim. P. 30. The district court's procedure for instructing the jury regarding its consideration of the prior convictions falls within the clear scope of Rule 30.

Elms and Hetzer next assert that the instruction is only appropriate when a defense of mistake or accident is raised. This argument is not persuasive. The government was required to prove each element of the charged crime. The jury instruction was necessary to focus the jury's attention on its duty to consider only the crimes charged in the indictment in light of the evidence proving the necessary elements of those crimes. See Soliman, 813 F.2d at 279 (general charge to jury that defendant is not on trial for any act not alleged in indictment is sufficient); United States v. Walls, 577 F.2d 690, 697 (9th Cir.) (same), cert. denied, 439 U.S. 893 (1978).

The district court did not abuse its discretion in instructing the jury on its consideration of the evidence of a prior conviction.

On March 22, 1989, after deliberating for more than eight hours, the jury returned with a question for the court: "Is it illegal to possess a methamphetamine laboratory?" In response to the question, the district court instructed the jury:

If you will recall, I instructed you, and you have a copy of this, "It is charged in Count I of the indictment that from a time unknown--that from on or about a time unknown, but not later than on September the 14th, 1988, and continuing thereafter up to and including on or about September 20th, 1988, in the County of Fresno, State and Eastern District of California and elsewhere, the Defendants Elms, Anders, Hetzer and Pitman did knowingly and intentionally conspire and agree with each other and with others unknown to unlawfully manufacture methamphetamine, a Schedule II controlled substance, in violation of Title 21, United States Code, Section 846 and 841(a) (1).

I also informed you that as a matter of law you must accept the Court's statement that methamphetamine is a Schedule II controlled substance, and I further instructed you that you must determine beyond a reasonable doubt whether the defendants or any of them agreed to manufacture methamphetamine. Section 841(a) of Title 21 of the United States Code provides: "Except as authorized by this title, it shall be unlawful for any person knowingly or intentionally to manufacture, distribute or dispense or possess with intent to manufacture, distribute or dispense, a controlled substance."

Section 846 of Title 21, United States Code provides that "Any person who attempts or conspires to commit any offense defined in this Title and 841 in this title, is punishable by imprisonment or fine or both," and then it prescribes what the maximum will be.

So, the short answer to your question is if you determine that the goods [were] possessed by the defendants, and you find that beyond a reasonable doubt is a methamphetamine laboratory, then the answer to your question would be yes.

Elms and Hetzer contend that the judge's "short answer" misstated the law because it did not inform the jury that the defendants must have the intent to manufacture the methamphetamine as an element of the crime charged in the indictment.

The instruction quite clearly states that the jury must find that Elms and Hetzer "knowingly and intentionally conspired and agreed with each other and with others unknown to unlawfully manufacture methamphetamine." Thus, the jury was directed to determine whether Elms' and Hetzer's intended to manufacture methamphetamine. Although the judge's "short answer" omitted the element of intent, the instruction that had just been repeated by the district court clearly informed the jury of the necessity for the government to prove intent. See United States v. Beltran-Rios, 878 F.2d 1208, 1214 (9th Cir. 1989) (the trial judge did not abuse her discretion because the duress instruction, taken as a whole, did not appear to be misleading.).

The judgments of conviction are affirmed.

AFFIRMED.