UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 93-9089

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus

JAMES ROBERT BENBROOK, JR. and STEVEN DWAIN SEXTON, Defendants-Appellants.

Appeals from the United States District Court for the Northern District of Texas

(December 2, 1994)

Before POLITZ, Chief Judge, GOLDBERG and DUHÉ, Circuit Judges.

POLITZ, Chief Judge:

James Robert Benbrook, Jr. and Steven Dwain Sexton appeal

their convictions for unlawful possession of a listed chemical,

(d)(2); Benbrook also appeals his conviction of

using a firearm in relation to a drug trafficking offense,

(c)(1). We affirm.

Background

In October of 1992 the Drug Enforcement Agency received a

confidential tip, which was reinforced a few weeks later by additional information from the same unnamed informant, about a

clandestine drug laboratory. In December 1992, DEA agents

performed a "creep"1 on Benbrook's home in Forney, Texas in an

effort to determine whether the manufacture of methamphetamines was

taking place. That creep disclosed no telltale odors, sounds, or

visible evidence of the manufacture of the contraband. In January

1993, following receipt of further information of suspicious

activity from the same source, by now identified as Benbrook's

ex-girlfriend Mary Carol Taylor, the DEA performed a second creep

which proved to be as unproductive as the first.

Agents subsequently interviewed Taylor who advised that in the

prior December she had seen in the house white powder she believed

to be methamphetamine. Cooperating with the DEA, she later

delivered three small rocks of methamphetamine she said were

manufactured at Benbrook's home. In April 1993 she informed agents

that Benbrook had obtained most of the chemicals necessary for more

manufacture, and that production would begin shortly. Late on the

night of April 14, Benbrook's auto was under surveillance by a DEA

agent who requested assistance from the Mesquite police department

to identify the driver. The local police responded, stopped the

vehicle, and determined that Benbrook was the driver. A narcotics

dog was called in and it alerted on the trunk, but no controlled

substances were found. In the early morning hours of April 15

1 Agents described a "creep" as a surreptitious approach to the outer perimeter of property on which methamphetamine production is suspected, with agents exercising their olfactory powers to detect signature odors, as well as other sensory efforts to see and hear what might prove relevant.

2 another creep disclosed odors and sounds consistent with the

operation of a methamphetamine lab. Based on the cumulative

information, a search warrant was sought and secured.

Upon execution of the warrant near midday, April 15, 1993,

agents found Benbrook and Sexton sitting on a couch watching

television. Precursor materials were found in the sink, in

Benbrook's van, and in a wooden shed behind the house.

Phenylacetic acid, the controlled substance charged in the

indictment, was found in the locked van. Trace amounts of

methamphetamine were found in glassware in the house and in the

shed, which had been nailed shut. The shed contained the equipment

necessary for the manufacture of methamphetamine. It was not then

operational but could be made so in a few hours. The search also

uncovered copious notes and literature on the manufacture of both

amphetamines and methamphetamines.

In the search of the house, the agents found a disassembled

9mm pistol and one bullet on a shelf in the room in which Benbrook

and Sexton were located. Upstairs, under Benbrook's bed, they

found two loaded pistols, and in a closet they found a pistol, a

mini 14 ranch rifle, a 12 gauge shotgun, and a 44 magnum

lever-action rifle. In addition, a pistol was found in Sexton's

truck.

Benbrook and Sexton were charged with both the unlawful

possession of contraband and the firearm infraction. The jury

returned verdicts of guilty on both counts against both defendants;

the district court granted a post-trial motion acquitting Sexton on

3 the firearm count.

On appeal Benbrook challenges the validity of the search and

the evidence it produced, the refusal of the trial court to sever

the trials, the admission of evidence of extrinsic offenses, and

the sufficiency of the evidence on both counts. Sexton challenges

the sufficiency of the evidence and the tainting effect of the

evidence relating to the firearm charge of which he ultimately was

acquitted.

Analysis

Benbrook first contends that the evidence acquired in the

execution of the search warrant should have been supressed because

the initiating affidavit was insufficient. He faults the affidavit

for not informing the magistrate judge that the odors described can

linger for months and for failing to apprise the authorities that

Taylor had given information on two prior occasions which had

proven unfounded. He also points to trial testimony contrary to

Taylor's assertion that she had been in the house in December 1992.

Under the good faith exception to the exclusionary rule,

officers may rely on a warrant supported by an affidavit alleging

more than wholly conclusionary statements even if the affidavit,

subsequently assessed, is found insufficient to establish probable

cause.2 The instant affidavit, however, easily passes muster.3

2 United States v. Satterwhite,

(5th Cir. 1992). 3 The affidavit included information from Taylor describing Benbrook's manufacturing process and the presence of methampheta- mine in the home. It included the information gathered by the DEA during its third creep, that is, the presence of odors and noises consistent with the manufactuare of methamphetamine. Also included

4 Benbrook maintains that the good faith exception should not be

applied because in making the affidavit the DEA agents omitted

material information and included false information.4 To prevail

in this argument Benbrook must make a substantial showing that the

affiant made the statement, or omission, knowingly or with reckless

disregard for the truth. In limine, the district judge found that

Benbrook had failed to make the required preliminary showing

warranting a hearing on the matter. At the close of the

prosecution's case, the judge found that any statement or omission

by the affiant that misled the magistrate judge was neither knowing

nor intentional. We find nothing in the record to indicate that

either of these rulings was erroneous.

Benbrook next contends that the trial court erred in refusing

to sever his trial from Sexton's, maintaining that evidence of

extrinsic offenses by Sexton prejudiced his trial. We need not

tarry long here. Defendants indicted together should be tried

together absent a serious risk of compromising a specific trial

right or of preventing the jury from making a reliable judgment

about guilt or innocence.5 The two witnesses attesting to

was an account of the narcotics dog's alert on Benbrook's car. See United States v. Brown,

(5th Cir.), cert. denied,

(1991). 4 United States v. Leon,

(1984) (citing Franks v. Delaware,

(1978)); United States v. Cronan,

(5th Cir. 1991) (noting that omissions as well as misstatements may require suppression of evidence under Franks). 5 See Zaifiro v. United States, _____ U.S. _____,

(1993); United States v. Arzola-Amaya,

(5th Cir.), cert. denied,

(1989).

5 extrinsic evidence against Sexton, testified about substantially

similar evidence against Benbrook. We perceive nothing especially

complex about either the evidence or the proceedings to suggest

that the district court's instruction to the jury on the use of

extrinsic evidence was ineffective in preventing prejudice to

Benbrook. We find no abuse of discretion by the district court in

denying the motion to sever.6

Benbrook also faults the allowance of evidence about his prior

drug and weapons activities. Under Fed.R.Evid. 404(b), before such

evidence can be admitted the trial court must first find that the

evidence is relevant to an issue other than the defendant's

character.7 Here, the court found that the extrinsic offenses were

relevant to Benbrook's knowledge, motive, plan, opportunity, and

intent to possess the controlled substance with the intent to

manufacture methamphetamine. Past drug activities involving

methamphetamine logically are relevant to what Benbrook intended to

do with the methamphetamine precursor chemicals found in his home.8

The same applies to prior gun activities and the firearm charge.

The district court did not abuse its discretion in finding the

6 United States v. Martinez-Perez,

(5th Cir. 1991), cert. denied,

(1992). 7 United States v. Beechum,

(5th Cir. 1978) (en banc), cert. denied,

(1979). 8 Beechum,

("Where the evidence sought to be introduced is an extrinsic offense, its relevance is a function of its similarity to the offense charged."). Mary Elizabeth Benbrook, Benbrook's estranged wife, testified that he manufactured methamphetamine every two or three months while they were dating and during their marriage.

6 extrinsic offenses relevant to Benbrook's intent.9

The district court must also find that the probative value of

the past offenses is not outweighed by the danger of unfair

prejudice to the defendant.10 The government had the burden of

proving Benbrook's intent to manufacture methamphetamine and his

use of a firearm in relation to drug trafficking. We perceive no

error in the court's finding that the probative value of the

extrinsic offense evidence was not outweighed by its prejudice to

the defendant.11

Benbrook next asserts that the evidence was insufficient to

support the guilty verdicts on his two counts. In our review we

inquire whether a reasonable trier of fact could find that the

evidence established guilt beyond a reasonable doubt, viewing the

evidence in the light most favorable to the verdict.12 "The

evidence need not exclude every reasonable hypothesis of innocence

or be wholly inconsistent with every conclusion except that of

guilt."13 In this inquiry, we resolve all questions of credibility

9 United States v. Williams,

(5th Cir. 1990) (reviewing relevance prong of 404(b) test under the abuse of discretion standard). 10 Fed.R.Evid. 403; Beechum. 11

("[V]alue must be determined with regard to the extent to which the defendant's unlawful intent is established by other evidence, stipulation, or inference."). 12 United States v. Faulkner,

(5th Cir.), cert. denied,

(1994). 13 United States v. Maseratti,

(5th Cir. 1993), cert. denied,

(1994).

7 in favor of supporting the jury's verdict.14

Benbrook first contends that there is insufficient evidence to

support his conviction under

(c)(1). To sustain a

firearms conviction the government must prove that the defendant

used or carried a firearm in relation to a drug trafficking

offense.15 Benbrook argues that the government failed to prove he

"used" a firearm in relation to the drug trafficking charge,

contending that by virtue of the location of the firearms upstairs

and the government admissions that he made no effort to reach a

gun, he could not and did not "use" a firearm. We are not

persuaded.

In United States v. Thomas,16 we held that a jury could find

that an unloaded firearm stored in a gym bag on the second floor of

a house was used in relation to drug trafficking. Noting that

"[t]he fact that a weapon is `unloaded' or `inoperable' does not

insulate a defendant from the reach of §924(c)(1)," we held that

the government is required to show only that the firearms in

question were available to provide protection to the defendant's

drug activities.17 The Thomas decision concluded that the presence

14 United States v. Gallo,

(5th Cir. 1991). 15 United States v. Onick,

(5th Cir. 1989). The district court acquitted Benbrook on the firearm charge to the extent that he was charged with "carrying" a weapon in relation to a drug offense. 16

(5th Cir.), cert. denied,

(1994). 17 Id. at 1362 (citing United States v. Contreras,

(5th Cir. 1991), cert. denied,

(1992)); United States v. Pace,

(5th Cir. 1993) ("`Use' does not require the government to prove actual use such as the discharging

8 of loaded firearms at a defendant's home where drugs, money, and

ammunition are also found is "sufficient to establish the use of a

firearm as an integral part of the drug trafficking crime."18

In the case at bar Benbrook's home contained chemicals,

methamphetamine equipment, methamphetamine residue in glassware,

and large amounts of cash. The room in which Benbrook was found

contained a disassembled pistol and a bullet. Pistols, rifles, and

a shotgun were found upstairs. Taylor testified that on prior

occasions Benbrook carried a firearm while he had drugs in his

possession. Viewing all of the evidence in the light most

favorable to the jury verdict, we entertain no doubt about its

adequacy.19

We reach the same conclusion about the adequacy of the

evidence supporting the

(d)(2) conviction. To

convict on this charge the government had to prove beyond a

reasonable doubt that Benbrook knowingly and willfully possessed

phenylacetic acid, knowing or having cause to believe that it would

be used to manufacture methamphetamine.

Benbrook initially faults the evidence that the substance

of or brandishing of the weapon. The government may meet its burden by simply showing that the weapons facilitated, or could have facilitated, the drug trafficking offense."), cert. denied,

(1994). 18 Thomas, 12 F.3d at 1362; United States v. Molinar-Apodaca,

(5th Cir. 1989). 19 See United States v. Capote-Capote,

(5th Cir. 1991) ("Weapons in the home may facilitate a drug crime because the defendant could use the guns to protect the drugs."), cert. denied,

(1992).

9 found in his van was in fact phenylacetic acid. Neither of the two

testifying DEA chemists made a conclusive identification, but a DEA

agent did. Benbrook views this as insufficient as a matter of law.

We do not. In United States v. Osgood,20 we held that the

identification of a controlled substance could be established by

circumstantial evidence, including lay witness testimony, as long

as the drug's identity is established beyond a reasonable doubt.

In the instant case, the DEA agent detailed his experience in

searching clandestine methamphetamine laboratories. When asked to

identify the substance found in back of Benbrook's van, he stated

that in his opinion the substance was phenylacetic acid. One

chemist testified to the presence of phenylacetic acid when pressed

by the defense to respond to the defense assertion that materials

for manufacturing methamphetamine were not present in Benbrook's

home. Reasonable jurors, acting reasonably, could conclude that

all elements of the section 841(d)(2) charge were proven beyond a

reasonable doubt. Benbrook's contention that he lacked the ability

to manufacture the drug because certain precursors were missing is

unavailing. The statute does not require the possessor to be

either in the process of manufacturing the drug or presently able

20

(5th Cir.), cert. denied,

(1986). Benbrook's attempt to distinguish Osgood on the ground that it allowed lay witness testimony to identify drugs but not other chemical compounds is unavailing. His distinction is more appropriately an attack on the credibility to be given such an identification. Depending on how distinct the characteristics of a compound are, identification by a lay person may be more or less persuasive. In this case, we resolve the issue of agent Hardwick's credibility in favor of the verdict. Gallo.

10 to do so to be guilty of this charge.21

We find no reversible error or defect in Benbrook's

convictions and they are affirmed.

Sexton challenges the sufficiency of the evidence supporting

his conviction under

(d)(2), asserting that the

government failed to demonstrate that he had possession of the

phenylacetic acid found in Benbrook's van. Sexton contends he was

merely present at Benbrook's home when the DEA arrived and that

such presence, standing alone, is insufficient to support his

conviction.22

Possession under section 841(d)(2) may be actual or

constructive and the proof thereof may be by direct or

circumstantial evidence.23 In order to establish constructive

possession the government must prove ownership or dominion or

control over either the substance in question or the premises where

found. Stated in other terms, the government must establish

adequate nexus between the accused and the prohibited substance.24

The record reflects that Sexton was found at Benbrook's home

when the DEA search uncovered the phenylacetic acid. Mere presence

21 See United States v. Hyde,

(11th Cir. 1992) (explaining that section 841(d)(2) presumes that the final product has not yet been manufactured), cert. denied,

(1993). 22 Onick. 23 United States v. Pigrum,

(5th Cir.), cert. denied,

(1991). 24 United States v. Rojas,

(5th Cir. 1976), cert. denied,

(1977).

11 at the home of another when prohibited substances are found cannot,

alone, sustain a finding of constructive possession. Such

presence, however, is evidence that the jury may consider when

determining Sexton's guilt or innocence.25 Sexton's presence does

not stand alone. Benbrook's wife testified that Benbrook and

Sexton were partners in manufacturing methamphetamine. She also

testified that she witnessed Sexton carrying chemical containers to

the laboratory in the shed and otherwise assisting in the

production of the methamphetamine. She added that Sexton often

would wash or change clothes at the Benbrook home to get rid of the

smell of the precursor chemicals. She stated that Sexton assisted

in the manufacture of the methamphetamine in exchange for a portion

of production. Benbrook's former girlfriend testified that she had

seen Sexton shave methamphetamine powder from "rocks" of the

material, and she attested to witnessing Sexton using methampheta-

mine and offering it to others.

In United States v. Willis,26 we held that such extrinsic

evidence was admissible under Fed.R.Evid. 404(b) to prove intent to

possess constructively a prohibited substance. The probative value

of such depends on the similarity between the prior conduct and the

charged conduct.27 Here, Benbrook's wife testified about Sexton's

exercise of control over the precursor materials in the past,

suggestive of his intent to exercise such control over the subject

25 United States v. Magee,

(5th Cir. 1987). 26

(5th Cir. 1993). 27 Beechum.

12 phenylacetic acid.28 The testimony of Benbrook's wife and former

girlfriend provide a motive and an explanation for Sexton's

presence at the Benbrook home. Sexton disputes the credibility of

this testimony; the jury obviously did not. We must defer to that

credibility assessment.29

The factual situation presented herein is distinguishable from

that in Onick where we held that the defendant's presence in the

house containing narcotics was an insufficient basis to find

constructive possession. In that case, the jury was left to infer

guilt from the defendant's mere presence in the house where the

drugs were located and the defendant's association with the

resident. Here, the government has shown both of those factors as

well as extrinsic evidence of intent to assert dominion and control

over the precursor chemical. Unlike the jury in Onick, Sexton's

jury did not have to speculate in order to convict. Viewing the

evidence in a light most favorable to supporting the verdict, we

conclude that a reasonable jury could find beyond a reasonable

doubt that Sexton had joint constructive possession with Benbrook

over the phenylacetic acid.

In his second point on appeal, Sexton claims that the district

court erred in allowing extrinsic evidence of gun possession under

Fed.R.Evid. 404(b) because he ultimately was acquitted of the

28 Willis (finding convictions for possession and possession with intent to distribute highly probative on the issue whether defendant intended to exercise dominion and control over controlled substances found in his presence but not in his actual possession); United States v. Yeagin,

(5th Cir. 1991) (accord). 29 Gallo.

13 firearm charge. We find this assignment of error to be without

merit. Without a showing that the charge was brought in bad faith,

evidence admissible, when introduced, in a fair trial of that

charge cannot serve as the basis for reversible error

notwithstanding Sexton's post-verdict acquittal.30

The convictions of Benbrook and Sexton are AFFIRMED.

30 United States v. Carter,

(5th Cir.), cert. denied,

(1992).

14