Opinion
No. 00-40024-22-SAC
August 28, 2002
MEMORANDUM AND ORDER
The defendant is one of the twenty defendants named in a seventy-seven-count superseding indictment. On February 20, 2002, the defendant pleaded guilty to a single-count information filed the same day that charged her with interstate travel or transportation in aid of a racketeering enterprise in violation of 18 U.S.C. § 1952(a)(3). In exchange for her guilty plea, the government agreed to dismiss counts 1 through 76 of the superseding indictment which pertained to Janet Cline, to recommend that she receive the full adjustment for acceptance of responsibility, to take no position on the application of the safety valve, and to advise the court that it knew of no information indicating that Ms. Cline directly or actively participated in the manufacture or distribution of methamphetamine.
The Presentence Report ("PSR") calculates a total offense level of twenty-three from a base offense level of twenty-four, plus two levels for a weapon enhancement and less three levels for acceptance of responsibility. With a criminal history category of one, the applicable sentencing guideline range is forty-six to fifty-seven months. The only objection to the PSR remaining for the court's decision is the defendant's dispute with the two-level increase for possession of a weapon. The PSR recommends this enhancement based on the loaded Glock 9mm semi-automatic weapon found in the defendant's purse during the search of the defendant's residence. Near the defendant's purse, officers also found deposit books, a bookkeeping record book, receipts and currency from the defendant's business, Romantic Delights.
On August 20, 2002, the court heard the parties' arguments and received evidence on this objection. At that time, the court took the matter under advisement and continued the sentencing pending its ruling on this objection. Having reviewed all matters submitted for its consideration and researched the law relevant to these issues, the court files this decision as its ruling on the defendant's objection to the PSR.
Objection and Arguments
The defendant objects to the two-level weapon enhancement arguing that the government is unable to prove a temporal and spatial relationship between the firearm found at the defendant's residence and the sales of pseudoephedrine occurring at her business, Romantic Delights, in Baxter Springs, Kansas. The defendant denies that there is any evidence of the defendant having or brandishing a firearm during the pseudoephedrine sales, of a weapon being located near any of the sales, or of the defendant actually handling the sales of any pseudoephedrine.
The government argues the enhancement is appropriate considering that the interstate travel element of the offense of conviction constitutes the defendant's travel between her Oklahoma residence and her Kansas business and the transportation of her business documents and cash in those regular trips. Not only did the defendant admit this conduct at her change of plea hearing, according to the government, but the defendant also admitted through her counsel that she carried this weapon for protection when she traveled alone at night. These admissions combined with the circumstantial evidence from the defendant's residence demonstrate the defendant possessed the firearm in connection with her interstate travel between home and work. In short, the government says it has proved the weapon's proximity to the offense of conviction and the weapon's use in the offense of conviction, that is, as protection during the defendant's transportation of documents and cash from the business which involved the illegal sales of pseudoephedrine.
Relevant Law and Ruling
Section 2D1.11(b)(1) of the United States Sentencing Guidelines provides for a two-level enhancement "[i]f a dangerous weapon (including a firearm) was possessed" in connection with the offenses involving the unlawful distribution, importation, exportation or possession of a listed chemical. Application Note 1 to this guideline provision explains that this adjustment "should be applied if the weapon was present, unless it is improbable that the weapon was connected with the offense." U.S.S.G. § 2D1.11, comment. (n. 1). This weapon enhancement is analogous to the weapon enhancement at U.S.S.G. § 2D1.1(b)(1) which has been applied and discussed with some frequency. The court will look to the case law interpreting and applying this other enhancement. See United States v. Anderson, 61 F.3d 1290, 1304 n. 13 (7th Cir.), cert. denied, 516 U.S. 1000 (1995).
Consistent with the commentary, the Tenth Circuit has said that the government has the initial burden of proving possession by a preponderance of the evidence, and proof of possession may be established by showing "mere proximity to offense." United States v. Dickerson, 195 F.3d 1183, 1188 (10th Cir. 1999) (quoting United States v. Lang, 81 F.3d 955, 964 (10th Cir. 1996)). To meet this burden, the government must show "`that a temporal and spatial relation existed between the weapon, the drug trafficking activity [or the listed chemical offense], and the defendant.'" United States v. Flores, 149 F.3d 1272, 1280 (10th Cir. 1998) (quoting United States v. Roederer, 11 F.3d 973, 982 (10th Cir. 1993)), cert. denied, 525 U.S. 1092 (1999). Once the government proves such possession, the burden shifts to the defendant to show that it is improbable that the weapon was connected to the offense. United States v. Humphrey, 208 F.3d 1190, 1210 (10th Cir. 2000).
A preponderance of the evidence is "evidence which as a whole shows that the fact sought to be proved is more probable than not. . . .' [P]reponderance means something more than `weight'; it denotes a superiority of weight, or outweighing." United States v. Montague, 40 F.3d 1251, 1255 n. 2 (D.C. Cir. 1994) (internal quotation marks and quotation omitted); see United States v. Vaccaro, 5 F.3d 548, 1993 WL 371420, at *2 (10th Cir. 1993) (a preponderance of evidence standard simply means the evidence as a whole shows the fact sought to be proved is more probable than not).
"[I]t is not necessary for the Government to show that drugs and money changed hands near the weapon; the weapon may simply serve as a potentially deadly means of protecting the trafficker's goods, thereby increasing the danger of violence." United States v. Alexander, 292 F.3d 1226, 1231 (10th Cir. 2002) (quoting United States v. Flores, 149 F.3d at 1280). The evidence is more than sufficient for this court to find that the government has carried its burden of proving possession, that is, the existence of a temporal and spatial relation between the loaded handgun found in the defendant's purse, the offense of conviction, and the defendant.
The defendant does not object to the following facts appearing in the PSR. The defendant illegally sold pseudoephedrine at her lingerie store, Romantic Delights, to the co-defendants Shane and Tracey Wright as early as 1997 and continued to make these sales until the defendant referred the Wright's business to her husband. During one of those sales, Shane Wright told the defendant that a certain brand of pseudoephedrine pills had caused a "bad batch" and asked the defendant not to carry this brand anymore. It is also undisputed in the PSR that Ginger Breuil while working at Romantic Delights sold eighty-eight bottles of pseudoephedrine to undercover agents on December 12, 1999, and that arrangements for another sale were made on December 14, 1999. When the agents arrived the next day, they were told that the store was out of stock. Agents believe that co-defendant Tim Cline had depleted his wife's stock of pseudoephedrine pills at Romantic Delights in order to replace the pills that officers had seized from him in a traffic stop earlier the same day. Also as stated in the PSR, both the defendant and her employees rung up the illegal sales of pseudoephedrine as if lawful over-the-counter transactions. From these undisputed facts appearing in the PSR, the court can reasonably infer that illegal sales of pseudoephedrine at Romantic Delights had been ongoing for quite some time, that nothing had happened in the months just before March 27, 2000, to indicate these sales had ended, and that Romantic Delights commingled the proceeds from those illegal sales with the proceeds from other store sales.
Indeed, the court is aware from its handling of other matters in this case that agents intercepted a telephone call between Ginger Breuil, an employee of Romantic Delights, and an employee of Biker's Dream named Tommy on February 17, 2000. During that call, Ms. Breuil acknowledged that purchasers of pseudoephedrine coming to the store were "tweakers" slang for methamphetamine cooks, that she had sold ninety-six bottles of pseudoephedrine that day, and that some people made forty trips in and out of the store. Though it knows of this telephone call and believes the same would be admissible as reliable evidence for purposes of this sentencing, the court has not relied on it in deciding the issues before it because this evidence is not necessary to sustain the reasonableness of the court's inferences and because the government chose not to introduce this evidence during the sentencing hearing and did not ask the court at the close of hearing for an opportunity to supplement the record. See United States v. Spears, 197 F.3d 465, 471 (10th Cir. 1999) (a sentencing court may consider evidence introduced at a co-defendant's trial or sentencing "`if that evidence is relevant to the issue disputed at the sentencing phase, and if the sentencing judge also presided over the co-defendant's trial.'" (quoting United States v. Moore, 55 F.3d 1500, 1501-02 (10th Cir. 1995)), cert. denied, 529 U.S. 1045 (2000). The government recently filed a motion to supplement the record to include the transcript of this telephone call. (Dk. 1636). In the exercise of its discretion, the court denies the government's motion to supplement as untimely.
At the change of plea hearing, the government proffered the following on the interstate travel element of the charged offense:
With regard to the interstate travel element of the information, we would have offered evidence that the defendant's business, Romantic Delights, was located in Kansas; the defendant's residence was located in Quapaw, Oklahoma. During a search warrant at the defendant's residence, certain paperwork, documents, tax returns, articles of incorporation and so on were found at the defendant's residence along with cash which the government believes it could attribute to the defendant's business, Romantic Delights. The government submits that the defendant traveled on a regular basis between her business in Kansas and her residence in Oklahoma, where substantial documents and cash related to the business were found that would satisfy the interstate travel element and provide the Court with a basis for approving the information that was filed.
(Dk. 1584, pp. 18-19). The government proffered no other facts to support the interstate travel element of the charged offense. When asked by the court, the defendant's counsel agreed the government would be able to offer this evidence but did not acquiesce in the truthfulness of the allegations pertaining to the extent of pseudoephedrine sales at her business. (Dk. 1584, pp. 20-21). When the court referenced the government's proffer and the allegations contained in the information and then asked the defendant if the same was true, the defendant answered, "yes." (Dk. 1584, p. 22). Thus, the defendant admitted for purposes of her plea that she regularly traveled between her Kansas business and her Oklahoma residence and that documents and cash related to her business could be found at her home.
Evidence of the defendant's possession of a firearm comes from three sources. First, the defendant does not controvert the facts appearing in the PSR that during the search of the defendant's residence on March 27, 2000, officers seized approximately sixteen firearms, including a loaded Glock 9mm semi-automatic weapon that was found in the defendant's purse. The defendant's purse and gun was located near Romantic Delights deposit books, an appointment book, books and catalogues for merchandise carried by Romantic Delights, a bookkeeping record book, and a bank deposit bag containing currency from Romantic Delights. Second, at the sentencing hearing, the government introduced photographs taken during the March 27th search. The first photograph shows the defendant's purse on the same chair with a larger cloth bag and on top of the latter bag there is a First National Bank deposit bag. The second photograph shows the bank deposit bag and its contents, including what the parties agreed was more than $1,500 in cash. Finally, the defendant's counsel in arguing against the weapon enhancement has written that the weapon found in her purse was used "primarily for protection as she traveled at night, of times alone, with cash proceeds from her business." (PSR, ¶ 148). Thus, the court can infer that in her regular travels between work and home, the defendant carried cash from her business and a weapon for her protection. The evidence seized from the defendant's household on March 27th, a loaded firearm in the defendant's purse next to the business's bank deposit bag, sustains the reasonableness of this inference.
The above evidence and facts satisfy the court that the government has carried its burden of proving more probably true than not that a temporal and spatial relationship exists between the firearm found in the defendant's purse and the offense of conviction. Because the defendant regularly traveled between her Kansas business and her Oklahoma residence taking with her different documents and cash related to her business, because a part of Romantic Delights' business was the illegal sale of pseudoephedrine and the proceeds from which were commingled with its other sales, and because the defendant carried the firearm as protection during her travels to and from work, the court concludes that the defendant possessed the loaded weapon for the purpose of protecting herself and the proceeds of her business which included the illegal sales of pseudoephedrine.
In an effort to show the improbability that the loaded firearm is related to the offense of conviction, the defendant argues the lack of direct evidence to show the weapon's presence at the Kansas store during any of the illegal pseudoephedrine sales, the defendant's absence during the undercover sales, and the lack of direct evidence to show the defendant knowingly transported proceeds from illegal pseudoephedrine sales to her home. None of these arguments are persuasive in showing the improbability that the defendant carried the firearm to protect herself as she traveled to and from work transporting documents and cash from her business and that part of the defendant's business was the illegal sale of pseudoephedrine. The court overrules the defendant's objection to the weapon enhancement.
From the evidence of record, a reasonable person could infer that the defendant's weapon was regularly present in her store. That a store owner would take her purse containing a loaded weapon with her into the store rather than leave it in an unattended automobile for the entire day is a reasonable inference. So is the inference that a store owner would consider her need for protection to begin the second she walks out the store at the end of the day carrying cash proceeds from her business. The court, however, has not relied on these inferences to sustain the weapon enhancement here.
IT IS THEREFORE ORDERED that the defendant's pending objection to the weapon enhancement recommended in the PSR is overruled;
IT IS FURTHER ORDERED that the government's motion to supplement record (Dk. 1636) is denied.
IT IS SO ORDERED.