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United States of America v. Obell Xavier Vanover

January 13, 2011

UNITED STATES OF AMERICA, APPELLEE,
v.
OBELL XAVIER VANOVER, APPELLANT.
UNITED STATES OF AMERICA, APPELLEE,
v.
BARBARA JANE VANOVER, APPELLANT.



Appeals from the United States No. 09-3599 District Court for the Southern District of Iowa.

Per curiam.

[PUBLISHED]

Submitted: April 13, 2010

Before RILEY, Chief Judge, COLLOTON and BENTON, Circuit Judges.

Obell "Butch" Vanover and Barbara "Barb" Vanover, husband and wife, appeal their drug trafficking and firearm convictions. The Vanovers allege there is insufficient evidence to support their convictions and the district court*fn1 crafted an erroneous jury instruction. Butch also argues the district court erred in denying his motion to suppress. We affirm.

I. BACKGROUND

When viewed in the light most favorable to the jury's verdicts and accepting all reasonable inferences in support thereof, see, e.g., United States v. Bordeaux, 570 F.3d 1041, 1047 (8th Cir. 2009), the facts are these:

A. Detective Wagner Investigates the Vanovers

Detective Mesha Wagner serves on the Mid-Iowa Narcotics Enforcement (MINE) task force, a cooperative effort among federal, state, and local law enforcement agencies in Central Iowa. The MINE task force focuses on illegal narcotics interdiction in Des Moines and its suburbs.

In August 2007, an anonymous tipster informed Detective Wagner the Vanovers were selling and using methamphetamine in their Des Moines home. In October 2007, Detective Wagner searched the Vanovers' curbside garbage. In the Vanovers' trash, Detective Wagner found letters addressed to the Vanovers, Ziploc baggies with torncorners (so-called "corner baggies"), and a small jeweler's baggy containing methamphetamine residue. As expert witnesses would later attest at the Vanovers' trial, drug dealers commonly package small quantities of illegal narcotics in baggies similar to those found in the Vanovers' garbage.

B. Unrelated Investigation Leads to the Vanovers

On December 19, 2007, members of the MINE task force were conducting surveillance of Debra Dale in a then-unrelated investigation. Law enforcement officers suspected Dale was selling methamphetamine. One officer gave a confidential informant (CI) $540 to buy a quarter ounce of methamphetamine from Dale. The officer also put a secret listening device on the CI.

The CI went to Dale's house and tried to buy methamphetamine from her. Dale told the CI she needed to use the $540 to buy the methamphetamine from her supplier. Dale took the $540, left the CI at her house, and drove away. Law enforcement officers, including Detective Wagner, followed Dale to the Vanovers' home while the CI waited at Dale's house.

Dale went into the Vanovers' home to buy the methamphetamine. Barb was home, but Butch was not. Barb took Dale to the master bathroom, opened a drawer, and they discussed how much methamphetamine Dale needed. Dale asked for a quarter ounce. Barb took some methamphetamine, a scale, and baggies out of the drawer. Because there was not enough methamphetamine in the drawer for the relatively large quantity Dale had requested, Barb told Dale to wait. Barb then went to the Vanovers' garage to obtain more methamphetamine.

Shortly thereafter, Barb returned to the bathroom with another baggie of methamphetamine. Barb sold Dale a quarter ounce of methamphetamine in a baggie for $540. Barb then gave Dale a small "bonus" of methamphetamine in a second baggie for arranging the sale with the CI.

Dale left and drove towards her home. Several blocks away from the Vanovers' home, law enforcement officers stopped Dale for a minor traffic violation. The law enforcement officers asked Dale for permission to search her person, and Dale consented. The officers found the two baggies of methamphetamine in Dale's brassiere. Dale admitted she had just bought the methamphetamine from Barb.

C. Raid of the Vanovers' Home

Later that afternoon, Detective Wagner obtained a warrant to search the Vanovers' home. Around 4:50 p.m., ten MINE task force members executed the warrant. Upon arrival, they found a Hispanic man outside the Vanovers' home in a car bearing Nebraska license plates. Officers detained the man while they knocked and announced their presence. Barb answered the door and let the officers inside the home. The officers brought the man inside and assembled all persons, including a large number of children,*fn2 into the Vanovers' living room.

1. Miranda Warnings

Around 5:00 p.m., Detective Wagner read Barb her Miranda*fn3 rights. Barb indicated she understood her Miranda rights and waived her right to remain silent. Detective Wagner took Barb upstairs to a bathroom and interviewed her. At first, Barb insisted there were no illegal narcotics in the home and she did not deal drugs, but admitted she used methamphetamine. Eventually, however, Barb admitted she had sold methamphetamine "in the past" and there was a small quantity of methamphetamine in one of the bathrooms. When the interview concluded, Detective Wagner brought Barb downstairs into the living room.

Butch then arrived home from work. Officers handcuffed Butch, escorted him to the living room, and sat him down on a couch next to Barb and the unidentified Hispanic man. Officer Justin Song, a MINE task force member from the Ankeny Police Department, then read Miranda warnings aloud to all three suspects as they sat on the couch. Butch verbally acknowledged to Officer Song that he understood his Miranda rights and agreed to an interview.

Deputies Lonnie Peterman and Tom Griffiths, MINE task force members from the Polk County Sheriff's Office, led Butch down to the basement where they interviewed him for about an hour. Detective Wagner came downstairs mid-interview, and Butch then admitted he had recently started selling methamphetamine and there was methamphetamine in the home. Butch insisted he did not use methamphetamine.

2. Search of the Vanovers' Home

Members of the MINE task force searched the Vanovers' home. In the garage, officers found four Ziploc bags containing 119 grams of a mixture or substance containing methamphetamine. The four bags of methamphetamine were found inside a large plastic bag atop a shelf. In the basement, officers found empty Ziploc baggies with the number "1,000" written on them.

In the master bathroom, task force members found unused Ziploc baggies, a Ziploc baggie with a mixture or substance containing 6.55 grams of methamphetamine in it, and several corner baggies in the trash. Scattered around the master bedroom, officers found Barb's purse, which contained .4 grams of a mixture or substance containing methamphetamine inside a Ziploc baggie, and envelopes addressed to the Vanovers, including an utility bill addressed to Butch. Within a dresser in the master bedroom, officers found .51 grams of a mixture or substance containing methamphetamine, a digital scale, and related drug paraphernalia. In the Vanovers' bed in the master bedroom-lodged between the mattress and the box spring-officers found (1) a High Point Model C9 9 mm Luger pistol; (2) unused Ziploc baggies; and (3) four Ziploc baggies containing a total of $4,000 in cash. The High Point was fully operational, loaded with Remington Peters 9 mm ammunition, and placed near the edge of the head of the bed. In a safe in the master bedroom, officers found a Taurus PT-22 .22 caliber pistol, .22 and .38 ammunition, 12-gauge shotgun slugs, some Ziploc baggies with white residue inside, a scale, a 100-gram weight, a small spoon, and other drug paraphernalia.

Including the methamphetamine found in Dale's brassiere, officers found a total of 142 grams of mixtures or substances containing methamphetamine attributable to the Vanovers during their investigation. The law enforcement officers never found the $540 the CI gave Dale to buy the quarter ounce of methamphetamine from Barb. Further, a fingerprint expert who examined the firearms and ammunition did not find the Vanovers' fingerprints. The expert did find the fingerprints of two unidentified persons on the High Point's magazine. There is no evidence either firearm had been fired. The Taurus firearm was not functional.

D. Prior Proceedings

In September 2008, a grand jury returned a seven-count superseding indictment against the Vanovers. Only Counts 1 through 5 are relevant to this appeal.*fn4 Count 1 charged the Vanovers with conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846. Count 2 charged the Vanovers with distribution of methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), and 18 U.S.C. § 2. Count 3 charged the Vanovers with possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), and 18 U.S.C. § 2. Count 4 charged the Vanovers with "Use or Carry [sic] a Firearm in Furtherance to [sic] a Drug Crime," in violation of 18 U.S.C. § 924(c)(1)(A)(i). Count 5 charged Butch with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).

In June 2009, the district court held a three-day jury trial on the superseding indictment. The jury found the Vanovers guilty as charged in Counts 1 through 5. In response to a series of interrogatories, the jury also found the Vanovers conspired to distribute, distributed, and possessed with intent to distribute "at least 50 grams of a mixture and substance containing methamphetamine."

The district court sentenced Butch to 420 months of imprisonment and Barb to 181 months of imprisonment. The Vanovers appeal.

II. DISCUSSION

Before our court are six issues, which fall into three categories. The first category consists of Butch's arguments concerning the denial of his motion to suppress. The second category includes the Vanovers' arguments regarding the sufficiency of the evidence to support their various convictions on Counts 1 through 5. The third category is comprised of the Vanovers' arguments about the district court's marshalling instruction for Count 4.

A. Motion to Suppress

1. Standard of ...


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