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Full Opinion
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 10-1299
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
William James Crippen, *
*
Appellant. *
___________
Submitted: September 22, 2010
Filed: December 20, 2010
___________
Before SHEPHERD, BRIGHT, and ARNOLD, Circuit Judges.
___________
SHEPHERD, Circuit Judge.
William Crippen was convicted of conspiracy to manufacture
methamphetamine in violation of 21 U.S.C. § 841(b)(1)(C), and conspiracy to tamper
with a witness in violation of 18 U.S.C. § 1512(b)(2)(A). The district court1 sentenced
him to 180 months imprisonment. Crippen appeals the district court’s denial of his
motion to suppress evidence, the district court’s denial of his motions in limine, the
1
The Honorable James E. Gritzner, United States District Judge for the Southern
District of Iowa.
sufficiency of the evidence to support his convictions, and the district court’s
sentencing decision. We affirm.
I.
The conspiracy to manufacture methamphetamine at issue in this case involves
conduct spanning a period of two years. In late 2007, Guy Conroy and William Stibbs
began manufacturing methamphetamine at Conroy’s house. In return for finished
methamphetamine, Crippen supplied pseudoephedrine pills to Conroy and Stibbs on
multiple occasions. In October 2008, the police executed a search warrant at Conroy’s
house and discovered ingredients and equipment used in manufacturing
methamphetamine. The officers also discovered Crippen, who was arrested for
possession of methamphetamine. Upon questioning at the police station, Crippen
denied any involvement in the operation and explained that he had come to Conroy’s
house to go fishing. As a result of the search, Stibbs was charged federally and
incarcerated, and Conroy was charged in Iowa state court and released pending trial.
The specific charges against Crippen are not clear from the record, but he was
apparently released.
After the October 2008 search, Crippen and Troy Daniels began cooking
methamphetamine. Conroy became involved again while awaiting trial when Crippen
and Daniels asked him if they could use his house for part of the manufacturing
process. The three men worked together to obtain the ingredients necessary for
manufacturing methamphetamine. They obtained pseudoephedrine pills by either
purchasing them or asking others to purchase them, obtained anhydrous ammonia by
stealing it from tanks on farms and co-ops, and obtained lithium batteries and other
ingredients as needed.
In January 2009, Crippen was seated in the front passenger seat of a pickup
truck driven by Daniels. When police officer Scott Palmer passed the truck, he
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noticed Crippen was not wearing his seatbelt. Officer Palmer reversed the direction
of his patrol car, and began to follow the truck. Officer Palmer observed Daniels pull
into the parking lot of an apartment building, throw rubber tires into a dumpster, and
exit the parking lot. Aware of previous trespass complaints at the apartment building,
Officer Palmer contacted police dispatch and verified that the apartment manager had
not recently given anyone permission to dump trash in the apartment building’s
dumpster.
Officer Palmer then followed the pickup truck outside city limits and initiated
a traffic stop in a rural area. As he approached the vehicle, Officer Palmer recognized
Daniels from previous trespass complaints at the apartment building and recognized
Crippen from the October 2008 search of Conroy’s home. When Daniels could not
produce proof of insurance, Officer Palmer asked Daniels to exit the truck. For safety
reasons, Office Palmer checked Daniels for weapons and placed him in the front seat
of the patrol car to isolate him from Crippen. He then contacted police dispatch to
determine whether Daniels was permitted on the apartment premises and learned that
the apartment manager had allowed Daniels to stay there overnight. He concluded
that he could not arrest Daniels for trespass, but he could issue a citation for failure
to have proof of insurance to Daniels and a citation for failure to wear a seatbelt to
Crippen.
Officer Palmer returned to the truck to issue the seatbelt citation to Crippen and
noticed the curved top of a white coffee filter sticking out of Crippen’s right coat
pocket. Based on his training and experience in law enforcement, Officer Palmer
knew coffee filters are often used in manufacturing methamphetamine. He also
recalled that Crippen had been in possession of methamphetamine when officers
found him at Conroy’s house in October 2008.
After observing the coffee filter, Officer Palmer asked Crippen for his name,
address, and social security number, then returned to his squad car to check on Daniels
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and seek backup assistance. He went back to the truck and asked Crippen to exit the
vehicle. After conducting a pat-down search of Crippen for weapons, Officer Palmer
seized the coffee filters. When Officer Palmer asked Crippen about the filters,
Crippen responded by asking what he could do to avoid being charged and admitting
that drugs could be found on the driver’s side of the vehicle.
Officer Palmer and Detective Tim Cook, who responded to Officer Palmer’s
request for backup assistance, searched the truck and discovered methamphetamine
in plastic baggies under the seats; receipts from the purchase of pseudoephedrine; and
a backpack with a digital scale, baggies, a tag from a propane tank, and a brass
coupler. Daniels and Crippen were both arrested. It is not clear from the record
whether Crippen was charged at this point, but he was apparently released. Daniels
remained incarcerated, but he eventually agreed to cooperate with law enforcement
to obtain evidence on Conroy and Crippen.
In February 2009, Daniels delivered pseudoephedrine pills to Conroy’s house
while wearing a recording device. After he arrived, Conroy had a telephone
conversation with Crippen during which Crippen agreed to buy lithium batteries at
Conroy’s request and informed Conroy another individual had left three boxes of
pseudoephedrine pills in Conroy’s truck. A short time later, Crippen arrived at the
house and walked out to the driveway to retrieve the pseudoephedrine pills from
Conroy’s truck.
With this information, law enforcement officers obtained a search warrant and
entered Conroy’s house. They found Conroy attempting to hide manufacturing
paraphernalia in a hidden compartment in the living room closet with Crippen
standing nearby. Officers seized lithium batteries; a pouch with snort tubes, a spoon,
and a digital scale; coffee filters; a coffee grinder; and pseudoephedrine pills. Crippen
was arrested and charged with conspiracy to manufacture and distribute
methamphetamine and the manufacture and distribution of methamphetamine.
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While Crippen was awaiting trial, he made frequent phone calls to his mother
and others from the jail telephone. During these conversations, Crippen indicated that
he wanted to prevent Daniels from testifying as a witness against him. Crippen, his
mother, and others developed a plan to speak with Daniels and convince him to not
appear in court. Several strategies were discussed, including asking Daniels to
consider how long Crippen would be in jail if he testified, threatening Daniels and his
wife, and physically harming Daniels. Based on these conversations, Crippen was
also charged in a superseding indictment with conspiracy to tamper with a witness.
At trial, Crippen moved to suppress the evidence obtained during the traffic
stop in January 2009. The district court granted the motion in part, ordering the
exclusion of the incriminating statements made by Crippen and denied the motion in
part, admitting the evidence seized from Crippen’s coat pocket and the truck.
Crippen also filed motions in limine to exclude pseudoephedrine logs showing
that Crippen had purchased pseudoephedrine pills, Crippen’s prior convictions for
conspiracy to manufacture methamphetamine and possession of ephedrine as a
precursor, and recordings of phone calls made by Crippen to various individuals while
he was incarcerated. The district court denied Crippen’s motions in limine.
At the conclusion of the trial, the jury found Crippen guilty of conspiracy to
manufacture 50 grams or less of a mixture and substance containing
methamphetamine and conspiracy to tamper with a witness, and it acquitted Crippen
on the charge of the manufacture or distribution of methamphetamine. Crippen
moved for judgment of acquittal, but the district court denied his motion.
Based on Crippen’s involvement in the conspiracy, the Presentence
Investigation Report (PSR) recommended that Crippen be held responsible for 62
boxes of pseudoephedrine pills. Using a one-to-one ratio of pseudoephedrine boxes
to grams of actual methamphetamine, the PSR calculated that the 62 boxes of
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pseudoephedrine pills equaled 62 grams of actual methamphetamine. Accordingly,
the PSR recommended the district court find a base offense level of 32 and a two-
point adjustment for obstruction of justice, bringing his offense level to 34 under the
Federal Sentencing Guidelines. In the alternative, the PSR recommended the district
court find that Crippen qualified as a career offender, which also resulted in a base
offense level of 34. The PSR further recommended the district court find that Crippen
had a criminal history category of VI, resulting in an advisory sentencing range of 262
to 327 months of imprisonment.
At sentencing, the district court adopted the PSR’s recommendation and found
Crippen was responsible for 62 grams of actual methamphetamine. The district court
also found that Crippen qualified as a career offender. With a base offense level of
34 and a criminal history category of VI, Crippen’s advisory sentencing range was
262 to 327 months imprisonment. Based on consideration of the factors in 18 U.S.C.
§ 3553(a), the district court found Crippen’s case justified a variance below the
Guidelines range and imposed a sentence of 180 months imprisonment.
II.
Crippen raises four issues on appeal. We address each in turn.
A. Motion to Suppress
Crippen challenges the district court’s denial of his motion to suppress the
evidence seized from his person and from the truck during the January 2009 traffic
stop. When reviewing the denial of a motion to suppress, we review the district
court’s factual findings for clear error and its legal conclusions de novo. United States
v. Johnson, 619 F.3d 910, 917 (8th Cir. 2010). We will affirm “unless the decision
is unsupported by substantial evidence, is based on an erroneous view of the
applicable law, or in light of the entire record, we are left with a firm and definite
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conviction that a mistake has been made.” United States v. Rodriguez-Hernandez,
353 F.3d 632, 635 (8th Cir. 2003).
Crippen first argues that the search of his person, which resulted in the seizure
of the coffee filter, was an invalid pat-down search because it was not motivated by
a fear that he was armed and dangerous. Crippen contends this is clear because
Officer Palmer did not conduct the search when he initially observed the coffee filter
in Crippen’s pocket, instead conducting it only after requesting information from
Crippen, walking back to his squad car, and returning to the truck a second time.
Police officers may perform a pat-down search of a driver and passengers upon
reasonable suspicion that they may be armed and dangerous. United States v. Oliver,
550 F.3d 734, 737 (8th Cir. 2008), cert. denied, 130 S. Ct. 740 (2009). “The officer
need not be absolutely certain that the individual is armed; the issue is whether a
reasonably prudent man in the circumstances would be warranted in the belief that his
safety or that of others was in danger.” Id. at 738 (quoting Terry v. Ohio, 392 U.S. 1,
27 (1968)). A suspicion on the part of police that a person is involved in a drug
transaction supports a reasonable belief that the person may be armed and dangerous
because weapons and violence are frequently associated with drug transactions.
United States v. Bustos-Torres, 396 F.3d 935, 943 (8th Cir. 2005). The district court
found that because Officer Palmer remembered Crippen from the October 2008 search
of Conroy’s house and knew coffee filters are used as part of the methamphetamine
manufacturing process, he suspected Crippen was involved in a drug transaction and
thus had reasonable suspicion Crippen was armed and dangerous. Accordingly, the
pat-down search and seizure of the coffee filter was valid.
Crippen next challenges the search of the truck, arguing that the evidence seized
should have been excluded as non-testimonial physical evidence flowing from
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involuntary statements made after a Miranda2 violation. We conclude, however, that
Crippen does not have standing to assert his Fourth Amendment challenge to the
search. In order to have standing here, Crippen must demonstrate that he personally
has a reasonable expectation of privacy in the truck because Fourth Amendment rights
may not be asserted vicariously. United States v. Barragan, 379 F.3d 524, 529 (8th
Cir. 2004). As a mere passenger in a vehicle with no legitimate expectation of privacy
under the seats where the evidence was found, Crippen cannot challenge the search
of the truck. Id. at 530.
Crippen cites Brendlin v. California, 551 U.S. 249 (2007), in support of his
position that he may challenge the search of the truck as a mere passenger. While
Brendlin held that a passenger is seized for Fourth Amendment purposes during a
traffic stop and thus may challenge it, id. at 255, 259, here Crippen challenges the
search of the truck, not the traffic stop. Because we conclude Crippen does not have
standing, we need not decide whether the evidence in the truck should have been
excluded as non-testimonial physical evidence flowing from involuntary statements
made after a Miranda violation.
B. Motions in Limine
Crippen next challenges the district court’s denial of his motions in limine. We
review for an abuse of discretion. United States v. Ellison, 616 F.3d 829, 832 (8th
Cir. 2010).
Crippen first argues that the district court erred in admitting pseudoephedrine
logs bearing his signature because the evidence was protected health information
2
Miranda v. Arizona, 384 U.S. 436 (1966).
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under the Health Insurance Portability and Accountability Act of 1996 (HIPAA).3
Even assuming that pseudoephedrine logs constitute protected health information
entitled to HIPAA’s privacy protections and that HIPAA protection requires the
exclusion of evidence at trial, propositions for which Crippen cites no authority, the
requirements of HIPAA were complied with in this case. The pseudoephedrine logs
were obtained by subpoena, and entities required to comply with HIPAA may disclose
protected health information in compliance with a subpoena under 45 C.F.R.
§ 164.512(f)(1)(ii)(A).
Crippen next argues that the district court abused its discretion by admitting his
prior convictions under Federal Rule of Evidence 404(b). Prior convictions may not
be introduced as evidence in order to show propensity to commit the crime charged.
Fed. R. Evid. 404(b). If a prior conviction is improper character evidence, it is
inadmissible. United States v. Foster, 344 F.3d 799, 801 (8th Cir. 2003). If a prior
conviction is not offered as improper character evidence, it is admissible if it satisfies
an additional four-factor admissibility test. United States v. Turner, 583 F.3d 1062,
1065-66 (8th Cir. 2009), cert. denied, 130 S. Ct. 1928 (2010). The evidence must:
(1) be relevant to a material issue raised at trial, (2) be similar in kind
and close in time to the crime charged, (3) be supported by sufficient
evidence to support a finding by a jury that the defendant committed the
other act, and (4) not have a prejudicial value that substantially
outweighs its probative value.
United States v. Kern, 12 F.3d 122, 124-25 (8th Cir. 1993).
We conclude that Crippen’s prior convictions were not offered as improper
character evidence and satisfied the four-factor admissibility test. First, evidence of
3
Pub. L. No. 104-191, 110 Stat. 1936 (codified at scattered sections of 18
U.S.C., 26 U.S.C., and 42 U.S.C.).
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Crippen’s prior drug involvement is relevant to the material issue of whether he had
the requisite intent to enter into a conspiracy to manufacture drugs. Turner, 583 F.3d
at 1066. Second, the convictions involved the same conduct, id., and were only seven
years old at the time of Crippen’s trial. United States v. Trogdon, 575 F.3d 762, 766
(8th Cir. 2009), cert. denied, 130 S. Ct. 1116 (2010). There is no dispute that the
convictions were supported by sufficient evidence, and the prejudicial effect of the
prior convictions did not outweigh their probative value. The prior convictions were
probative of Crippen’s knowledge and intent, and the district court’s limiting
instruction to the jury—that the evidence was admitted only to show knowledge and
intent—minimized any prejudicial effect. Turner, 583 F.3d at 1066.
Finally, Crippen contends that the district court erred in admitting portions of
the recordings of his phone calls to various individuals from jail. The conversations
at issue include brief references to statements made by “Doug,” “Wally,” and
“Snyder,” which Crippen argues are hearsay. As the district court ruled, each of the
statements Crippen asked the district court to exclude from the recordings merely
provided context for other admissible statements made by Crippen and his
coconspirators and were not offered for their truth. Accordingly, the statements are
not hearsay. See United States v. Spencer, 592 F.3d 866, 879 (8th Cir. 2010).
C. Sufficiency of the Evidence
Crippen claims that the evidence was insufficient to support both his conspiracy
to manufacture methamphetamine conviction and his conspiracy to tamper with a
witness conviction. We review challenges to the sufficiency of the evidence presented
at trial de novo. United States v. Butler, 594 F.3d 955, 964 (8th Cir. 2010). We
consider the evidence in the light most favorable to the jury’s verdict, draw all
reasonable inferences in the Government’s favor, and reverse a conviction only if no
reasonable jury could have found the defendant guilty beyond a reasonable doubt. Id.
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To establish a conspiracy to manufacture methamphetamine, the Government
must prove: (1) that a conspiracy existed; (2) that the defendant knew of the
conspiracy; and (3) that the defendant knowingly became a part of the conspiracy. 21
U.S.C. § 841(b)(1)(C); United States v. Davidson, 195 F.3d 402, 406 (8th Cir. 1999).
Even without direct evidence of a conspiracy, the jury may draw reasonable inferences
from the evidence presented as to the defendant’s state of mind when he did or said
the things represented in the evidence. United States v. Wilson, 103 F.3d 1402, 1406-
07 (8th Cir. 1997).
In this case, the Government presented ample evidence from which the jury
could reasonably infer that a conspiracy existed, that Crippen knew of the conspiracy,
and that he knowingly became a part of it. The Government introduced physical
evidence of methamphetamine precursors and other items used in the manufacturing
process discovered at Conroy’s house in October 2008 and in the vehicle in January
2009, and the Government established that Crippen was present at both these
locations. In addition, the Government introduced the coffee filter with
methamphetamine residue seized from Crippen’s pocket during the January 2009
traffic stop. The jury heard a recording of Daniels’ controlled delivery of pills to
Conroy’s house, which included a conversation between Crippen and Conroy where
they discussed the need to obtain lithium batteries and pseudoephedrine pills and that
another person had placed pseudoephedrine pills in Conroy’s truck. The jury also saw
a surveillance video showing Crippen retrieve the pills from Conroy’s truck. This
evidence was sufficient to support Crippen’s conviction for conspiracy to manufacture
methamphetamine.
To establish a conspiracy to tamper with a witness, the Government must prove
that the defendant knowingly used intimidation, threatened, or corruptly persuaded
another person with intent to cause or induce any person to withhold testimony from
an official proceeding or to conspire to do so. 18 U.S.C. § 1512(b)(2)(A). Crippen
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argues that because neither his mother nor anyone else he spoke to about threatening
Daniels actually contacted Daniels, the evidence was not sufficient to support
Crippen’s conviction.
Crippen’s argument fails because conspiracy is an inchoate offense, which “is
complete on the agreement to violate the law as implemented by one or more overt
acts, however innocent such act standing alone may be, and it is not dependent on the
success or failure of the planned scheme.” United States v. Littlefield, 594 F.2d 682,
684 (8th Cir. 1979). A discussion of how to achieve the purpose of an agreement
constitutes an overt act in furtherance of the agreement, United States v. Bertling, 510
F.3d 804, 810 (8th Cir. 2007), cert. denied, 552 U.S. 1304 (2008), and more
specifically, telephone conversations “in which plans and arrangements are made in
furtherance of the conspiracy are overt acts.” United States v. Civella, 648 F.2d 1167,
1174 (8th Cir. 1981).
Here, the Government introduced evidence of Crippen’s conversations with his
mother, his uncle, and others in which Crippen stated his intent to threaten Daniels
and prevent him from testifying. The jury also heard multiple conversations in which
Crippen made plans with various individuals about how Daniels would be contacted
and persuaded not to testify. This evidence provided sufficient support for the jury’s
verdict, and the fact that Crippen and his coconspirators did not achieve their purpose
is irrelevant. United States v. Joiner, 418 F.3d 863, 867 (8th Cir. 2005).
D. Sentencing Decision
Finally, Crippen argues that the district court erred in determining that the
applicable advisory sentencing range under the Guidelines was 262 to 327 months.
Crippen first contends that the district court erred in characterizing him as a career
offender because his three state felony convictions constituted a single criminal
episode, and thus he does not have “at least two prior felony convictions.” United
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States Sentencing Commission, Guidelines Manual, §4B1.1(a)(3). We review the
district court’s determination that a defendant qualifies as a career offender de novo.
United States v. Ojeda-Estrada, 577 F.3d 871, 875 (8th Cir. 2009), cert. denied, 130
S. Ct. 1112 (2010).
In determining whether a defendant has “two prior felony convictions,” the
sentences for the convictions must be counted separately under section 4A1.1 of the
Guidelines. U.S.S.G. §4B1.2(c). Section 4A1.1 counts prior sentences separately “if
the sentences were imposed for offenses that were separated by an intervening arrest
(i.e., the defendant is arrested for the first offense prior to committing the second
offense).” U.S.S.G. §4A1.2(a)(2). If there was no intervening arrest, prior sentences
are nonetheless counted separately unless they “resulted from offenses contained in
the same charging instrument” or “were imposed on the same day.” Id.
Here, there were at least two prior felony convictions for career offender
purposes because there was an intervening arrest. Before his conviction in this case,
Crippen had three felony convictions for conspiracy to manufacture methamphetamine
arising from three incidents in 2001 that Crippen asserts constitute a single criminal
episode. In June 2001, when police were called to an active methamphetamine lab in
Warren County, Iowa, Crippen fled the scene and a warrant for his arrest was issued.
In August 2001, Crippen was arrested in Dallas County, Iowa, for manufacturing
methamphetamine and released pending trial. In November 2001, police went to
Crippen’s house to execute the June 2001 arrest warrant and found materials used in
the manufacture of methamphetamine, which resulted in additional charges against
Crippen. Because there was an intervening arrest—Crippen was arrested for the
August 2001 offense prior to committing the November 2001 offense—he has at least
two prior felony convictions under the Guidelines. Crippen nonetheless urges that his
sentences should not be counted separately because they were part of the same plea
agreement, were ordered to be served concurrently, and would have been imposed on
the same day if not for technicalities arising from having charges filed in two separate
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counties. Under the Guidelines, however, the presence of an intervening arrest ends
the inquiry, and accordingly, Crippen is a career offender.
Crippen next contends that the district court erred in finding him responsible
for 62 grams of actual methamphetamine because it used acquitted conduct in
violation of the Due Process Clause and because it relied on the PSR’s flawed drug
quantity calculation. We have rejected the contention that counting acquitted conduct
as relevant conduct violates a defendant’s due process rights. United States v. Webb,
545 F.3d 673, 677 (8th Cir. 2008), cert. denied, 129 S. Ct. 2021 (2009). There is some
merit, however, to Crippen’s argument that the drug quantity calculation in the PSR
is inconsistent with expert testimony at trial.
Adopting the PSR’s recommendation, the district court found Crippen
responsible for 62 of the 190 boxes of pseudoephedrine attributed to the conspiracy
as a whole, a finding Crippen does not challenge on appeal. The PSR used a one-to-
one ratio of boxes of pseudoephedrine pills to grams of actual methamphetamine in
calculating Crippen’s drug quantity. The PSR based this formula on expert testimony
at trial, which it characterized as stating that even under a conservative yield scenario
one box of pseudoephedrine yields at least one gram of actual methamphetamine.
More precisely, the expert testified that in order to calculate the amount of actual
methamphetamine yield from a given amount of pseudoephedrine, the amount of
pseudoephedrine in grams is multiplied by 0.92. The expert further testified that this
formula represents the theoretical yield of actual methamphetamine and that the
highest practical yield of actual methamphetamine from a given number of grams of
pseudoephedrine is, at best, 50% of the theoretical yield. The PSR was thus
technically incorrect in using boxes of pseudoephedrine instead of grams of
pseudoephedrine in calculating the amount of actual methamphetamine.
This mistake is problematic here because the boxes of pseudoephedrine
purchased by the coconspirators contained varying amounts of pseudoephedrine and
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depending on which boxes Crippen is responsible for, his base offense level under
section 2D1.1(c) could change. The pseudoephedrine logs admitted at trial show that
some boxes contained only 1.44 grams of pseudoephedrine, while others contained
as much as 2.4 grams. Using the formula from the expert testimony, boxes with 2.4
grams would yield approximately 1.1 gram of actual methamphetamine. If Crippen
were held responsible for 62 boxes containing 2.4 grams of pseudoephedrine, this
would equal 68.44 grams of actual methamphetamine, giving Crippen a base offense
level of 32 under section 2D1.1(c)(4) of the Guidelines—the same offense level
recommended by the PSR. Boxes with 1.44 grams would yield 0.66 grams of actual
methamphetamine. If Crippen were held responsible for 62 boxes containing 1.44
grams of pseudoephedrine, this would equal 42.24 grams of actual methamphetamine,
giving Crippen a base offense level of 30 under section 2D1.1(c)(5) of the
Guidelines—a lower offense level than the PSR recommended.
Nonetheless, we need not decide whether the district court clearly erred in
accepting the PSR’s drug quantity calculation because it correctly determined that
Crippen qualifies as a career offender. When the offense level for a career offender
is “greater than the offense level otherwise applicable,” the career offender offense
level applies. U.S.S.G. §4B1.1(b). Thus, Crippen’s status as a career offender gives
him a base offense level of 34, which places him in the 262 to 327 month Guidelines
range even if his base offense level for drug quantity were reduced. Id.
III.
Accordingly, the judgment of the district court is affirmed.
______________________________
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