THE HONORABLE RONALD E. LONGSTAFF, United States District

1

Judge for the Southern District of Iowa, sitting by designation.

___________

No. 96-2343

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the 

* Western District of Missouri.

James E. Rhodenizer, also known *

as James E. Schelkle, *

*

Appellant. *

__________

 Submitted: November 19, 1996

 Filed: February 5, 1997

__________

Before RICHARD S. ARNOLD, Chief Judge, MAGILL, Circuit Judge, and

LONGSTAFF, District Judge. 1

___________

MAGILL, Circuit Judge.

James E. Rhodenizer was convicted by a jury of possession of

methamphetamine with an intent to distribute, in violation of 21 U.S.C.

§ 841(a)(1) (1994), possession of marijuana with an intent to distribute,

in violation of 21 U.S.C. § 841(a)(1), and two counts of carrying a firearm

during and in relation to a drug trafficking offense, in violation of 18

U.S.C. § 924(c)(1) (1994). Rhodenizer appeals his conviction, asserting

five arguments in support of his claim that his case should be reversed.

We disagree
 The Honorable Ortrie D. Smith, United States District Judge 2

for the Western District of Missouri.

-2-

and affirm the decision of the district court.2

I.

Acting on a report of unusual activity, Reserve Pulaski County Deputy

Matt Sutcliffe set up surveillance of a campsite at the Gasconade Hills

Resort in Pulaski County, Missouri on October 12, 1994. The campsite was

owned by Deputy Sutcliffe's parents. Deputy Sutcliffe conducted

surveillance for about five days. On one evening during his surveillance,

he witnessed thirty-two cars coming and going from the campsite between the

hours of 10:00 pm and 5:00 am. Between the time Deputy Sutcliffe began

surveillance of the campsite on October 12 and the time Rhodenizer left the

campsite on October 27, Rhodenizer was seen living at the campsite in a

camper shell attached to a brown two-tone Ford pickup truck. On October

21, 1994, Missouri State Highway Patrol Trooper Vic Wilfong and Officer

Mike Flett of the Lake Area Narcotics Enforcement Group joined the

surveillance effort.

On October 27, 1994, the surveillance team saw Rhodenizer and some

other people at the campsite making preparations to leave. Deputy

Sutcliffe and Trooper Wilfong observed Rhodenizer enter his Ford truck and

leave the campground. A grey Chevrolet and a red Mazda followed

Rhodenizer's Ford truck off the campground. Also part of the surveillance

team at this time were Officer Flett, Pulaski County Sheriff's Deputy Ron

Walter, Sergeant James Tillman of the Pulaski county Sheriff's Department,

and Pulaski County Sheriff J.T. Roberts. 

When the vehicles left the campsite, Officer Flett was positioned at

a nearby truck stop and was waiting for Rhodenizer's Ford and the other

vehicles to pass by him. Sutcliffe and Wilfong
-3-

tailed Rhodenizer to a residence, which they later learned was owned by

Danny Basham. Sutcliffe and Wilfong passed the residence, and as they

passed, they observed Rhodenizer's truck and the Chevrolet parked in front

of the residence. Sutcliffe and Wilfong turned around to pass by the

residence again, and on the second pass, they saw that no one was in either

vehicle. A third pass in front of the Basham residence revealed that the

Ford truck and the Chevrolet had left. Sutcliffe and Wilfong were able to

catch up with the Chevrolet, but not Rhodenizer's Ford.

Deputy Walters saw the Ford pickup and the grey Chevrolet pass in

front of his vehicle, and he followed them. The two vehicles pulled off

to the side of the road, and Deputy Walter pulled in behind them, turning

on his flashing red light as he did so. Deputy Walters saw the person next

to the Ford pickup turn around and reenter the truck's cab. From his

position, Officer Flett saw the driver of the Ford pickup, whom Officer

Flett described as a six foot tall white male of slim build wearing a

baseball cap. The two vehicles did not wait for Officer Flett but instead

drove off.

Sergeant Tillman had seen Rhodenizer's Ford truck leave the Basham

residence and was following the Ford truck. Sergeant Tillman was unable

to catch up with the driver of the Ford, in part because he was blocked by

the sudden detachment of the Ford's camper shell. After losing its camper

shell, the Ford truck veered off into the woods. Sheriff J.T. Roberts,

exited his vehicle and ran into the woods where he found the Ford crashed

into a tree. The Ford's engine was still running, but the driver was gone.

Sergeant Tillman joined Sheriff Roberts at the scene.

Sergeant Tillman and Sheriff Roberts searched the interior of the

Ford truck's cab. They found a loaded Smith & Wesson .38 caliber revolver

and 62.06 grams of methamphetamine. Sheriff Roberts took photographs of

the truck cab and the camper shell, including photographs of the drug

paraphernalia found in the camper
-4-

shell. In addition, Sheriff Roberts recovered from the camper shell a

fanny pack (a small bag that can be tied around one's hips), and a brief

case that contained photographs, bills, a Social Security card and

checkbooks for Jim Schelkle, a.k.a. James Rhodenizer. Sheriff Roberts also

testified to finding two custom knives, with bone-like handles, in the

truck at the crash site as well as at the tow lot later that evening.

However, the knives as well as a few other items were missing when an

official inventory of the truck was taken the next morning. Sergeant

Tillman also testified to having seen the knives. 

At trial, Danny Basham, who is the father-in-law of Rhodenizer as

well as the owner of the residence where Rhodenizer's truck and the

Chevrolet stopped, testified that he sold a knife or knives to Rhodenizer

and that Rhodenizer had entered Basham's residence alone. Also at trial,

Basham denied having told Sheriff Roberts that Rhodenizer came to Basham's

residence in a brown Ford pick-up with an attached camper and had also left

alone in the truck. Sheriff Roberts testified at trial to impeach Basham's

denial.

About one month after the driver of the Ford pickup evaded the

police, the police learned that on November 22, 1994, Rhodenizer was going

to go to the Bank of Dixon in Dixon, Missouri, to cosign for a loan.

Police surveilling the bank witnessed a woman park a 1987 white Chrysler

in the rear parking lot of the bank. Soon after her arrival, a bank

employee told the officers that this woman was the woman for whom

Rhodenizer was going to cosign the loan. 

The police approached the Chrysler and found Rhodenizer lying in the

back seat with his head resting on an open, black bag. Rhodenizer was

removed from the Chrysler and searched. The police found on Rhodenizer's

person ten .22 caliber bullets, $1,900 in cash, and a plastic bag

containing 88.74 grams of marijuana. A later inventory of the black bag

revealed that it contained a
-5-

loaded .22 caliber revolver resting at the top of the bag. 

II.

Rhodenizer argues that the district court erred when it issued jury

instructions because the court refused to define the meaning of the term

"carry" as it is used in 18 U.S.C. § 924(c)(1). Rhodenizer's argument is

without merit. We have previously held that a district court does not err

when it refrains from giving an instruction on the meaning of the term

"carry" as it is used in 18 U.S.C. § 924(c)(1). See United States v.

Freisinger, 937 F.2d 383, 387 (8th Cir. 1991) ("Even reviewing this issue

under the plain error standard, there was simply no error in the district

court's failure to give an instruction on the meaning of 'carries.'").

Furthermore, both § 924(c)(1) counts in this case involved a firearm in the

passenger compartment of a vehicle that also contained drugs. We have

specifically held that to transport a firearm in the passenger compartment

of a vehicle loaded with drugs is to carry a firearm within the meaning of

18 U.S.C. § 924(c)(1). See United States v. Willis, 89 F.3d 1371, 1379

(8th Cir.), cert. denied, 117 S. Ct. 273 (1996). With respect to the

§ 924(c)(1) charge connected to the marijuana count, our analysis is not

changed by the fact that the gun was in the top of a bag on which

Rhodenizer's head was resting as opposed to loose in the passenger

compartment of the vehicle.

III.

Rhodenizer next argues that the district court abused its discretion

when it refused to grant a mistrial after the jury mistakenly saw certain

items that the government had earlier agreed would not be admitted into

evidence. Specifically, when jury members examined a fanny pack entered

into evidence, they inadvertently found some drug paraphernalia that had

been mistakenly left in the bag and that the government had previously
-6-

agreed would not be admitted into evidence. 

The decision to deny a defendant's motion for a mistrial is within

the sound discretion of the district court. United States v. Koskela, 86

F.3d 122, 125 (8th Cir. 1996). We will affirm a district court's decision

not to grant a mistrial absent an "abuse of discretion resulting in clear

prejudice." Id. Even if an error has been committed, the trial court can

often avert any undue prejudice by giving a curative instruction. Cf.

United States v. Flores, 73 F.3d 826, 831 (8th Cir.) ("[W]e have observed

that measures less drastic than declaring a mistrial, for instance giving

the jury a curative instruction, ordinarily alleviate any prejudice flowing

from improper testimony."), cert. denied, 116 S. Ct. 2568 (1996). Finally,

we have noted that a defendant is entitled to a "fair trial, not a perfect

one." Id. at 832 (quotations omitted).

The government does not dispute that it was error for the jury to see

the drug paraphernalia that was within the fanny pack. See United States

v. Bishop, 492 F.2d 1361, 1365 (8th Cir. 1974) (holding that it is error

for a jury to examine items that are not entered into evidence). However,

this error did not result in clear prejudice. The evidence against

Rhodenizer, even without the drug paraphernalia found in the fanny pack,

was extremely strong. Moreover, the government had already introduced

photographic evidence of drug paraphernalia found in the Ford truck's

camper shell. Finally, the district court gave a curative instruction to

the jury members admonishing them not to consider any contents of the fanny

pack they might have seen. Cf. United States v. Nelson, 984 F.2d 894, 897

(8th Cir. 1993) ("The admission of allegedly prejudicial testimony is

ordinarily cured by an instruction to the jury to disregard the

testimony."). Thus, the district court did not abuse its discretion when

it denied Rhodenizer's motion for a mistrial.
-7-

IV.

Rhodenizer next argues that the district court erred when it denied

his other two motions for a mistrial. One motion for a mistrial was based

on his claim that there was insufficient evidence to convict him of

possession with intent to distribute methamphetamine. A second motion for

a mistrial was based on his claim that there was insufficient evidence to

convict him of carrying a firearm during the commission of the crime of

possession of methamphetamine with intent to distribute. 

When we review a challenge to the sufficiency of the evidence, we

consider the evidence in the light most favorable to the verdict and make

all reasonable inferences from the evidence that support the verdict. See

United States v. Melina, 101 F.3d 567, 573 (8th Cir. 1996). Thus, "[t]he

verdict must be upheld if there is an interpretation of the evidence that

would allow a reasonable jury to conclude guilt beyond a reasonable doubt."

United States v. Uder, 98 F.3d 1039, 1045 (8th Cir. 1996). Furthermore,

the government may rely on circumstantial evidence as well as direct

evidence to prove the elements of a crime. See United States v. Brown, 948

F.2d 1076, 1079 (8th Cir. 1991) ("The prosecution may prove essential

elements of the crime by direct and circumstantial evidence."); see also

United States v. Hankins, 931 F.2d 1256, 1258 (8th Cir. 1991) ("Each

element of the crime may be proven by circumstantial as well as direct

evidence.").

Viewed in the light most favorable to the guilty verdict, the

evidence established that Rhodenizer is guilty of possession of

methamphetamine with an intent to distribute. On October 27, 1994, the

police saw Rhodenizer enter the Ford truck in which he had been living for

at least two weeks and drive it off the campground. The Ford truck was

seen stopping at the Basham residence. Danny Basham testified that

Rhodenizer had entered his house. Although Basham later denied it at

trial, Sheriff Roberts testified that Basham had
-8-

told him that Rhodenizer had arrived on the evening of October 27 in a

brown pickup truck with an attached camper and later left in the same

vehicle. Finally, the police found 62.06 grams of methamphetamine in the

Ford truck, an amount that Sergeant Terry Mills of the Missouri State

Highway Patrol testified was more than the amount that would be kept for

personal use based on his four and one-half years of investigative

experience. 

Viewed in the light most favorable to the guilty verdict, the

evidence also establishes that Rhodenizer is guilty of carrying a firearm

while possessing methamphetamine with an intent to distribute. As

discussed above, the evidence establishes his guilt of possession of

methamphetamine with an intent to distribute. Furthermore, the Ford truck

containing methamphetamine also contained a loaded Smith & Wesson .38. We

have repeatedly held that to transport a firearm in the passenger

compartment of a vehicle loaded with drugs is to carry a firearm within the

meaning of 18 U.S.C. § 924(c)(1). See Freisinger, 937 F.2d at 387; Willis,

89 F.3d at 1379.

V.

Rhodenizer next argues that the district court erred when it admitted

into evidence (1) a recipe for methamphetamine and (2) photographs that the

police had taken of the drug paraphernalia found in the Ford truck's camper

shell. The decision whether to admit evidence at trial lies within the

sound discretion of the district court, and we will not reverse absent a

showing of prejudicial abuse of discretion. See United States v. Nelson,

988 F.2d 798, 805 (8th Cir. 1993) (leaving it to the district court to

balance between relevance and prejudice in admitting evidence and reversing

only if there is an abuse of discretion). Having reviewed the trial

transcript, we are satisfied that the district court did not abuse its

discretion when it allowed the recipe and the photographs into evidence.
-9-

VI.

Finally, Rhodenizer argues that he was denied his Sixth Amendment

right to legal counsel because of the ineffective assistance of his

appointed counsel. We decline to address Rhodenizer's claim of ineffective

assistance of counsel in this direct criminal appeal because such a claim

is not cognizable on direct appeal. "It is settled that ineffective

assistance of counsel is more properly raised in a collateral proceeding

. . . ." United States v. Kindle, 925 F.2d 272, 276 (8th Cir. 1991). Such

a claim is more properly raised on collateral review "because, among other

reasons, the record [on direct appeal] is often insufficient for us to

reach [a] conclusion." Id.

VII.

For the reasons discussed above, we affirm.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.