### THE HONORABLE RONALD E. LONGSTAFF, United States Distric t 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, an d LONGSTAFF, District Judge. 1

___________ MAGILL, Circuit Judge.

James E. Rhodenizer was convicted by a jury of possession o f met hamphetamine with an intent to distribute, in violation of 21 U.S.C

. § 841(a)(1) (1994), p ossession of marijuana with an intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and two counts of carrying a firear m 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 Hill s Resort in Pulaski Cou nty, Missouri on October 12, 1994. The campsite was owned by Deputy Sutcliffe's parents. Deputy Sutcliffe conducte d surveillance for about five days. On one evenin g during his surveillance, he witnessed thirty-two cars coming and going from the campsite between th e hours o f 10:00 pm and 5:00 am. Between the time Deputy Sutcliffe bega n surveillance of the campsite on October 12 and the time Rhodenizer left th e 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 Office r Mike Fle tt of the Lake Area Narcotics Enforcement Group joined th e surveillance effort.

On Octob er 27, 1994, the surveillance team saw Rhodenizer and som e other pe ople at the campsite making preparations to leave. Deput y Sutcliffe and Trooper Wilfong observed Rhodenize r enter his Ford truck and le ave the campground. A grey Chevrolet and a red Mazda followe d Rhodenizer's Ford truck off the campground. Als o part of the surveillance team at this time wer e Officer Flett, Pulaski County Sheriff's Deputy Ron Walter, Sergeant James Tillman of the Pulaski co unty 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 othe r vehicles to pass by him. Sutcliffe and Wilfong

### -3-

tailed Rhodenizer to a residence, which they later learned was owned b y Danny Basham. Sutcliffe and Wilfong passed the residence, and as the y passed, they observed Rhodenizer's truck and the Chevrolet parked in front of the residence. Sutcliffe and Wilfong turned around to pass by th e residence again, and on the second pass, they saw that no one was in eithe r vehicle. A third pas s in front of the Basham residence revealed that the Ford truck and the Chevrolet had left. Sutcliff e 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 i n front of his vehicle, and he followed them. The two vehicles pulled off to the side of the ro ad, and Deputy Walter pulled in behind them, turning
on his flashing red light as he did so. Deputy Walters saw the person nex t to the Fo rd pickup turn around and reenter the truck's cab. From hi s position, Officer Flett saw the driver of the Ford pickup, whom Office r Flett des cribed 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 Basha m 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, th e Ford truck veered off into the woods. Sheriff J.T. Roberts , exited his vehicle an d 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 th e Ford truck's cab. They found a loaded Smith & W esson .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 dru g 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 t hat contained photographs, bills, a Social Security card an d checkbooks for Jim Schelkle, a.k.a. James Rhodenizer. Sheriff Roberts als o testified to finding two custom knives, with bone-like handles, in th e tru ck 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 a n official i nventory of the truck was taken the next morning. Sergean t Tillman also testified to having seen the knives.

At tr ial, Danny Basham, who is the father-in-law of Rhodenizer a s well as t he owner of the residence where Rhodenizer's truck and th e Chevrolet stopped, te stified that he sold a knife or knives to Rhodenizer and that Rhodenizer h ad entered Basham's residence alone. Also at trial, Basham denied having told Sheriff Roberts that R hodenizer came to Basham's residence in a brown Ford pick-up with an attached camper and had also lef t 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 th e 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 ban k employee told the officers that this woman was the woman for who m Rhodenizer was going to cosign the loan.
The police approached the Chrysler a nd found Rhodenizer lying in the bac k seat with his head resting on an open, black bag. Rhodenizer wa s removed from the Chry sler and searched. The police found on Rhodenizer's person t en .22 caliber bullets, $1,900 in cash, and a plastic ba g 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.

Rhodenize r 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 usedin 18 U.S.C. § 924(c)(1). Rhodenizer's argument is without merit. We have previously held that a d istrict court does not err when it refrains from giving an instruction on the meaning of the ter m "ca rry" 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 th e passe nger compartment of a vehicle that also contained drugs. We hav e specifically held that to transport a firearm inthe passenger compartment of a vehicle loaded with drugs is to carry a fir earm within the meaning of 18 U.S. C. § 924(c)(1). See United States v. Willis , 89 F.3d 1371, 137 9 (8th Cir. ), cert. denied , 117 S. Ct. 273 (1996). With respect to th e § 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 whic h Rhodeniz er's head was resting as opposed to loose in the passenge r compartment of the vehicle.

III.
Rhodenizer next argues that the dist rict court abused its discretion when it refused to gr ant a mistrial after the jury mistakenly saw certain items that the government had earlier agreed would not be admitted int o 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 dec ision to deny a defendant's motion for a mistrial is withi n 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 mistri al absent an "abuse of discretion resulting in clear prejudice." Id. Even if an error has been comm itted, the trial court can often avert any undue prejudice by giving a curative instruction. Cf
. United States v. Flor es , 73 F.3d 826, 831 (8th Cir.) ("[W]e have observed that measures less dr astic than declaring a mistrial, for instance giving the jury a curative instruction, ordinarily alleviate any prejudice flowin g 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 paraphernali a 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 enteredinto evidence). However, this erro r did not result in clear prejudice. The evidence agains t Rhodenizer, even without the drug paraphernalia found in the fanny pack,
was ex tremely strong. Moreover, the government had already introduce d photog raphic evidence of drug paraphernalia found in the Ford truck' s camper shell. Finall y, the district court gave a curative instruction to the jury members admonishing them not to consider any contents of the fann y pack they might have seen. Cf. United States v. Nelson , 984 F.2d 894, 897 (8th C ir. 1993) ("The admission of allegedly prejudicial testimony i s ordinaril y cured by an instruction to the jury to disregard th e testimony."). Thus, the district court did not abuse its discretion when it denied Rhodenizer's motion for a mistrial.

### -7- IV.

Rhodenize r next argues that the district court erred when it denied his other two motions for a mistrial. One motio n for a mistrial was based
on his cl aim that there was insufficient evidence to convict him o f possession with intent to distribute methampheta mine. A second motion for a mistrial was based on his claim that there was insufficient evidence to convict h im of carrying a firearm during the commission of the crime o f possession of methamphetamine with intent to distribute.

When we review a challenge to the sufficiency of the evidence, w e 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. Meli na , 101 F.3d 567, 573 (8th Cir. 1996). Thus, "[t]he verdict must be uphel d 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 direc t evidence to prove the elements of a crime. See United States v. Brown , 94 8 F.2d 10 76, 1079 (8th Cir. 1991) ("The prosecution may prove essentia l elements of the crime by direct and circumstantial evidence."); see also Unit ed States v. Hankins , 931 F.2d 1256, 1258 (8th Cir. 1991) ("Eac h element of the crime may be proven by circumstantial as well as direc t evidence.").

Vie wed in the light most favorable to the guilty verdict, th e evidence established that Rhodenizer is guilty of possession o f methamphetamine with an intent to distribute. On October 27, 1994, th e police saw Rhodenizer enter the Ford truck in wh ich he had been living for at le ast two weeks and drive it off the campground. The Ford truck wa s
seen stopping at the Basham residence. Danny Basham testified tha t Rhodenizer had entered his house. Although Basham later denied it a t trial, Sheriff Roberts testified that Basham had

### -8-

told him that Rhodenizer had arrived on the evening of October 27 in a bro wn pickup truck with an attached camper and later left in the sam e vehicle. Finally, th e police found 62.06 grams of methamphetamine in the Ford truck , an amount that Sergeant Terry Mills of the Missouri Stat e Highway Patrol testified was more than the amount that would be kept for personal use based on his four and one-half years of investigativ e experience.

Vie wed in the light most favorable to the guilty verdict, th e evidence also establi shes that Rhodenizer is guilty of carrying a firearm while possessing methamphetamine with an intent to distribute. A s discus sed above, the evidence establishes his guilt of possession o f methamphetamine with an intent to distribute. F urthermore, the Ford truck containing methamphetamine also contained a load ed Smith & Wesson .38. We have repeatedly held that to transport a firearm in the passenge r compartment of a vehicle loaded with drugs is to carry a firearm within th e 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 th e police had taken of the drug paraphernalia found in the Ford truck's campe r shell. T he decision whether to admit evidence at trial lies within th e sound discretion of the district court, and we will not reverse absent a showing of prejudicia l abuse of discretion. See United States v. Nelson , 988 F.2d 798, 805 (8th Cir. 1993) (leaving it to the district court t o balance between relevance and prejudice in admitting evidence and reversin g only i f there is an abuse of discretion). Having reviewed the tria l trans cript, we are satisfied that the district court did not abuse it s discretion when it allowed the recipe and the photographs into evidence.

### -9- VI.
Finally, Rhodenizer argues that he was denied his Sixth Amendmen t right to legal counsel because of the ineffective assistance of hi s appointed counsel. We decline to address Rhodenizer's claim of ineffectiv e assistance of counsel in this direct criminal appeal because such a claim is n ot cognizable on direct appeal. "It is settled that ineffectiv e assistance of counsel is more properly raised in a collateral proceeding

. . . ." United States v. Kindle , 925 F.2d 272, 276 (8th Cir. 1991). Suc h a claim is more properly raised on collateral re view "because, among other
reaso ns, the record [on direct appeal] is often insufficient for us t o reach [a] conclusion." Id.

VII.
For the reasons discussed above, we affirm.

A true copy.

Attest:

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