United States v. Collins

799 F.3d 554

UNITED STATES of America, Plaintiff–Appellee

v.Russell Lee COLLINS (12–6263); Eddie Wilburn (12–6512); Richard Brosky (13–6617), Defendants–Appellants.

Nos. 12–6263

12–6512

13–6617.

United States Court of Appeals, Sixth Circuit.

Argued: Nov. 19, 2014.

Decided and Filed: Aug. 24, 2015.

ARGUED:Travis A. Rossman, Jewell & Rossman Law Office, Barbourville, Kentucky, for Appellant in 12–6263. Kevin M. Schad, Office of the Federal Public Defender, Cincinnati, Ohio, for Appellant in 12–6512. Mark A. Wohlander, Wohlander Law Office PSC, Lexington, Kentucky, for Appellant in 13–6617. Daniel Steven Goodman, United States Department of Justice, Washington, D.C., for Appellee. ON BRIEF:Travis A. Rossman, Jewell & Rossman Law Office, Barbourville, Kentucky, for Appellant in 12–6263. Kevin M. Schad, Office of the Federal Public Defender, Cincinnati, Ohio, for Appellant in 12–6512. Mark A. Wohlander, Wohlander Law Office PSC, Lexington, Kentucky, for Appellant in 13–6617. Daniel Steven Goodman, United States Department of Justice, Washington, D.C., for Appellee.

Before: DAUGHTREY, CLAY and COOK, Circuit Judges.

CLAY, J., delivered the opinion of the court in which DAUGHTREY, J., joined, and COOK, J., joined in the result.

OPINION

CLAY, Circuit Judge.

Defendants Russell Lee Collins, Eddie Wilburn, and Richard Brosky appeal from final judgments of the United States District Court for the Eastern District of Kentucky in a methamphetamine manufacturing and distribution conspiracy case. Defendant Collins appeals from the judgment of the district court entered on October 2, 2012, sentencing him to 324 months of incarceration for violation of various statutes including 21 U.S.C. § 846. Defendant Wilburn appeals from the judgment of the district court entered on November 26, 2012, sentencing him to 360 months of incarceration for violation of various statutes including 21 U.S.C. § 846. Defendant Brosky appeals from the judgment of the district court entered on December 2, 2013, sentencing him to 70 months of incarceration for violation of 21 U.S.C. § 846. On appeal, Defendants raise a number of arguments, including challenges to the admissibility and sufficiency of evidence, prosecutorial misconduct, constitutional violations, and the reasonableness of their sentences.

For the reasons that follow, we AFFIRM the judgments of the district court.

BACKGROUND

I. Procedural History

Defendants Russell Lee Collins, Eddie Wilburn, and Richard Brosky, as well as eight other individuals, were named in a superseding indictment filed in the United States District Court for the Eastern District of Kentucky on May 12, 2011, and charged with various offenses related to the manufacture and distribution of methamphetamine. A number of the individuals named in the indictment entered plea agreements and agreed to cooperate with the government.

Defendants proceeded to trial on May 29, 2012. On June 5, 2012, after a six-day trial, the jury entered its verdict. Defendants were all found guilty of one count of conspiring to manufacture a mixture or substance containing a detectable amount of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count 1). The jury made a finding regarding the quantity of methamphetamine involved for each defendant, attributing 500 grams or more of methamphetamine to Collins and Wilburn, and attributing less than 50 grams of methamphetamine to Brosky. The jury also found Collins and Wilburn guilty of conspiring to distribute more than 500 grams of a mixture or substance containing methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count 2), but found Brosky not guilty of that charge.

In addition to the manufacturing and distribution charges, the jury found Collins and Wilburn guilty of one count of possessing equipment used to manufacture methamphetamine in violation of 21 U.S.C. § 843(a)(6) (Count 5), and one count of conspiring to distribute a mixture or substance containing methamphetamine to persons under the age of twenty-one in violation of 21 U.S.C §§ 841(a)(1), 846, and 859(a) (Count 14). Wilburn was found guilty of one additional count of possessing equipment used to manufacture methamphetamine in violation of 21 U.S.C. § 843(a)(6) (Count 7). Collins was found not guilty of one count of transporting stolen anhydrous ammonia across state lines in violation of 21 U.S.C. § 864(a) and 18 U.S.C. § 2 (Count 6).

The district court sentenced Collins to concurrent terms of 324 months of incarceration on Counts 1, 2 and 14, in addition to a concurrent term of 120 months on Count 5. Wilburn was sentenced to concurrent terms of 360 months of incarceration on Counts 1, 2, and 14, and to concurrent terms of 240 months on Counts 5 and 7. Brosky was sentenced to 70 months of incarceration on Count 1, his sole count of conviction.

II. Factual History

A. Initial Investigation of Collins and Wilburn

On September 22, 2010, following an unrelated search, police officers found what they believed to be a methamphetamine laboratory in the woods near the residential compound where Wilburn and Collins lived. A hazmat technician was summoned and confirmed that the items found by the officers were used to manufacture methamphetamine. One of the officers, Detective Kelly Farris, subsequently searched Wilburn's trailer and discovered additional items typically associated with the manufacture of methamphetamine. Additionally, a tank of anhydrous ammonia, which is used in the manufacture of methamphetamine, was found buried in a creek bed near Wilburn's trailer.

On February 17, 2011, Detective Farris and Special Agent Robert O'Neil conducted a home visit at Wilburn's trailer and found a one-step methamphetamine laboratory in the bathroom. They also found other materials used in the manufacture of methamphetamine both inside the trailer and outside the trailer, and observed that there were surveillance cameras set up on Wilburn's residence pointing to the driveway and towards Collins' trailer. No methamphetamine was found at the residence.

Although the conspiracy for which Defendants were indicted allegedly began in January 2009 and continued until April 2011, Collins and Wilburn were incarcerated on unrelated charges until January 2010 and June 2010, respectively. The government does not contend that these defendants participated in the conspiracy while incarcerated.

B. Initial Investigation of Brosky

On November 16, 2010, Detective Farris conducted an investigation of Brosky's residence following a complaint received by the Knox County Police Department that there was a methamphetamine laboratory on a hill behind Brosky's house. Detective Farris and other officers found a number of items suspected of having been used to manufacture methamphetamine in an orchard behind Brosky's home. Detective Farris also found a video camera overlooking the apple orchard that was hard-wired back to Brosky's home and to a monitor in his bedroom. No methamphetamine was found at the residence. On the basis of this search, Detective Farris arrested Brosky and his wife.

C. Testimony of Government Witnesses

At trial, the government presented testimony from multiple witnesses, a number of whom were also named in the indictment or were facing other charges and agreed to cooperate with the prosecution. Many of these witnesses were “smurfs”—individuals who claimed to have provided Collins and Wilburn with certain over-the-counter medications in exchange for methamphetamine. The active ingredient of these medications is pseudoephedrine, a precursor necessary for the production of methamphetamine. Government witnesses also testified that Collins and Wilburn had a practice of trading methamphetamine for sex, cash, and valuable items.

Few witnesses provided testimony regarding the total amount of methamphetamine allegedly produced by the conspiracy, though some, including Leya Stapleton and Kimberly Griffith, testified that they would obtain quarter to half grams of methamphetamine from the Defendants with some frequency. Mickey Brown testified that he helped Collins and Wilburn “cook” methamphetamine for approximately seven months of the conspiracy, claiming that he was present on 20 to 30 occasions during which Collins and Wilburn produced anywhere from 16 to 34 grams of methamphetamine each time. Brown and Charles Skaggs, another government witness, testified that Brosky occasionally cooked methamphetamine with Wilburn and Collins.

Agent O'Neil provided testimony at trial regarding pseudoephedrine purchase records from January 2009 through April 2011 of individuals associated with the conspiracy. These records were created and stored by a company called MethCheck. Agent O'Neil testified that the purchases for this time period equaled 1,335 grams of pseudoephedrine. In his testimony, Agent O'Neil conceded that some portion of the pseudoephedrine represented in these records may have been provided to different methamphetamine “cooks” unrelated to the present conspiracy. Agent O'Neil, who was qualified as an expert, also testified regarding the possible conversion ratios between pseudoephedrine and methamphetamine. Throughout the trial, Defendants raised objections to the admissibility of the pseudoephedrine purchase records and to Agent O'Neil's testimony regarding conversion ratios. These objections were overruled.

Collins made multiple objections throughout the trial concerning the admissibility of evidence that overlapped with evidence previously presented at the trial of an unrelated methamphetamine manufacturing operation. The methamphetamine cooks for that operation, Darlene and Roscoe Smith, were convicted on March 1, 2012 of conspiring to manufacture at least 500 grams of a mixture or substance that contained methamphetamine. Many of the government's witnesses in the Smith case also testified against Defendants, and there was significant overlap between the pseudoephedrine purchase records admitted into evidence at both trials.¹

DISCUSSION

I. Brosky's...