1 District Judge of the Northern District of Illinois,

sitting by designation.

1 UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 92-8296

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

HAROLD C. RIDLEHUBER, JR.,

Defendant-Appellant.

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Appeal from the United States District Court for the

Western District of Texas

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December 29, 1993

Before EMILIO M. GARZA and DeMOSS, Ci rcuit Judges, and ZAGEL, 1

District Judge.

Zagel, District Judge:

Harold Ridlehuber, Jr., convicted of possessing an

unregistered short-barreled shotgun, was sentenced to thirty months

in prison, a three-year term of supervised release and a $3000

fine. He appeals from that conviction.2 For clarity, the Court will refer to the appellant, Harold Ridlehuber, Jr., as "defendant" or

"Ridlehuber," and his father, Harold Ridlehuber, Sr., as "Ridlehuber Sr."

2 I. FACTS

Much of the physical evidence in this case was seized in

September 1991 when law enforcement offi c ers executed several

search warrants in Hillsboro, Texas. During the search of a house

leased by Harold Ridlehuber, Sr., for the use of his son, the

defendant, officers found a short-barreled Stevens Savage 20-guage

shotgun resting on an open shelf in the kitchen. 2 Next to the

shotgun, the officers found an ammunition clip for a Colt AR-15

rifle. In another part of the house the officers found a Mossberg

2 0-guage shotgun of legal length standing upright against a w all

quite near a door, two more AR-15 clips and a box of 20-guage

shells. A few 20-guage casings were found on the driveway. In

addition to the weapons, the officers found the following: a drum

containing 230 pounds of sulfuric acid, two gallons of ether, a can

of ether starting fluid, a pan containing aluminum shavings, a hot

plate, tubing, a Pyrex funnel, thermometers, and rubber stoppers.

Search warrants were also executed at Ridlehuber, Sr.'s home

and at his place of business, a Hillsboro metal plating shop where

defendant worked with his father. In Ridlehuber, Sr.'s house was

a Colt AR-15 rifle and magazines, which Ridlehuber, Sr. said

belonged to his son. At the business office, agents seized

numerous chemicals including phenylacetonitrile, ethyl acetate,

sodium hydroxide, monomethylamine, ether, muriatic acid, acetone,

and reagent alcohol. In defendant's truck, parked at his father's3

office, was a loaded .45 caliber pistol. Except for the

monomethylami ne, all of the chemicals were later returned to

Ridlehuber Sr., who used the chemicals in his metal plating

business.

Facts like these are hard to dispute and defendant did not

bother to do so. At trial, the parties presented their respective

versions of what these facts mean. The central issue on appeal

concerns how the government went about convincing the jury that its

interpretation of the facts is the right one.

The evidence presented by the government at trial had a dual

focus: drugs and guns. The evidence relating to drugs provided a

motive for defendant's possessio n of the shotgun, while the gun

formed the basis for the weapons charge. Motive is not an element

of the crime for which defendant was convicted. But the government

can prove motive even when it does not have to and here it wanted

to provid e an explanation for why the gun was in the house.

Indeed, proof of defendant's motive for possessing the gun took

center stage at trial; the gun itself, like a corpse that opens a

detective sto ry, served more as a prop around which the

government's theory of the case revolved.

In the government's case-in-chief, several government

witnesses, law enforcement personnel experienced in the

investigation of drug labs, said that the chemicals and other

materials found in defendant's residence and place of employment

could be used to manufacture illegal drugs, namely, methamphetamine

or amphetamine. This fact was not mentioned in passing. Rather,4

several witnesses highlighted the possible connection between the

evidence seized and the manufacture of drugs. And the government

wasted no time presenting this possible connection to the jury.

The government's first witness was Ro bert Wilkerson, a narcotics

investigator with the Texas Department of Public Safety, who

participated in the investigation leading to Ridlehuber's arrest.

The first subject of Wilkerson's testimony was his experience

dealing with "individuals engaged in the manufacture of

methamphetamine and amphetamine," illegal drugs "generally

manufactured by indiv iduals privately." He then identified the

defendant and testified about the search warrants that were

executed on September 9, 1991 at defendant's residence and place of

employment.

Wilkerson was shown about thirteen photographs taken at J & R

Coating, Ridlehuber, Sr.'s metal plating shop. Most of the

photographs were of various chemicals used in the busi ness that

were stored at the shop. Wilkerson testified that although the

chemicals shown in the photog raphs have legitimate uses, some of

the chemicals are frequently found in illicit methamphetamine and

amphetamine labs. Wilkerson also testified briefly about weapons

and ammunition found during the search. Specifically, a pistol and

ammunition clip were found on the floorboard of defendant's truck,

a Colt AR-15 rifle and ammunition were discovered at his father's

home.3 At a sidebar during West's direct testimony, defense

counsel objected on relevance grounds to the government's focus on

drugs: "my client is not on trial for drugs , he's on trial for

pos session of a weapon." The court overruled the objection. At

the end of West's direct testimony, the court instructed the jury

that any evidence "concerning suggestions about a drug laboratory

is admitted only for the limited purpose of your consideration, if

you wish to consider it, as [sic] any motive that Mr. Ridlehuber

might have had in possessing the firearm in question. He's not on

trial for operating any drug lab."

5 Two narcotics investigators testified about the execution of

the search warrant at defendant's residence. Both testified that

the residence had a distinct chemical odor that they have come to

associate with clandestine drug labs that produce methamphetamine

and amphetamine. One investigator, Coy West, testified about the

chemicals and other items, such as aluminum shavings, a hot plate,

plastic tubing and thermometers, tha t were found in defendant's

residence. He said he had seen the same kinds of chemicals and

other items in clandestine drug labs. 3

A Bureau of Alcohol, Tobacco and Firearms agent named Ruben

Chavez testified about the short-barreled shotgun found on

defendant's kitchen shelf. Chavez explained that a short-barreled

or sawed-off shotgun is a gun that was at one time legal, but has

been modified such that the barrel length is less than 18 inches or

the overall length is less than 26 inches. The shotgun found in

defendant's residence had a barrel length of 15 and 3/4 inches and

an overall length of approximately 25 and 1/2 inches. According to

Chavez, although the hammer was broken off, the gun could be cocked

and fired if the hammer were pulled back with a tool, such as a pen

or screwdriver. Furthermore, Chavez testified that sawed-off4 During Reagan's testimony, defense counsel interposed

another relevancy objection similar to the one advanced d uring

West's testimony. The court overruled the objection and instructed

the jury that "this evidence is offered only for your consideration

as to any possible motive, not for any other purposes."

6 shotguns are commonly found in drug labs for three reasons. Their

reduced size makes them easier to concea l, easier to wield in a

g unfight, and the short barrel creates an extreme spread pattern

that can knock down multiple adversaries. Chavez did not specify

that the shotgun at issue here would fulfill all these purposes.

The testimon y of one of the government's witnesses, Deborah

Reagan, a chemist with the Texas Department of Public Safety, was

focused exclusively on the prosecution's drug lab the ory. After

attesting to her extensive experience analyzing evidence seized

f rom clandestine drug labs, Reagan testified in detail about the

various chemicals seized in connection with this case and their

potential usefulness in the production of methampheta mine or

amphetamine. 4 She testified that the chemicals found at

defendant's r esidence and place of employment were precursor

chemicals necessary in the production of methamphetam ine and

amphetamine. Reagan stated that although the chemicals found were

necessary to make methamphetamine and amphetamine, two pr ecursor

chemicals were not found.

Of the seven witnesses that the government called in its casein-chief, five gave testimony in support of the government's theory

that defendant possessed the shotgun to protect a clandestine drug5 The testimony of the other two witness was brief, spanning

a combined total of nine pages of the trial transcript.

6 Defendant actually maintained two residences, living parttime with his father and stepmother and part-time at the leased

house. Defendant kept most of his clothes and other possessions at

his father's house, and ate most of his meals there.

7 lab. 5 The government continued its efforts to buttress this theory

during the cross examination of Ridlehuber, Sr. Most of the

inquiries on cross concerned the chemicals used in th e metal

plating business--Ridlehuber Sr.'s methods for storing the

chemica ls, his recordkeeping practices with regard to the

chemicals, and the potential for the illegal use of the chemicals

to manufacture drugs. And in his closing argument, the prosecutor

a rticulated what had been intimated all along: Ridlehuber

possessed the sawed-off shotgun to protect an illegal drug lab.

T he strongest evidence linking defendant to the saw ed-off

shotgun is that it was found on an open shelf in the kitchen of the

house that defendant's father leased for his son's use. 6 Defendant

maintains that the shotgun is not his but, rather, is the property

of William Starrett, a man who lived with defendant in the leased

house for about a month during July and August of 1991. Starrett

was no longer living with defendant when the search warrants were

executed in September 1991, but his belongings were found in one of

the bedrooms of the leased house when it was searched.

Although there is evidence that defendant was in relatively

close proximity to the short-barreled shotgun, there is no evidence

that defendant ever handled or closely examined the gun. In

addition to the gun being on an open shelf, defendant also had an7 Rule 404(b) states: "Other crimes, wrongs, or acts.

Evidence of other crimes, wrongs or acts is not admissible to prove

the character of a per son in order to show action in conformity

therewith. It may, however, be admissible for other purposes, such

as proof of mot ive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident." Fed. R.

Evid. 404(b).

8 opportunity to view the gun when Starrett first brought it to the

leased house. One of the defense witnesses, Joseph Williford,

testified that defendant and he were barbecuing hamburgers when

Starrett drove up and took the shotgu n out of his car. Starrett

held up the gun and said it did not work, but that he was going to

try and get it fixed. Williford said that defendant did not handle

the gun on that occasion, and that he never saw the gun again.

II. ADMISSION OF "OTHER ACTS" EVIDENCE UNDER RULE 404(b)

Before trial Ridlehuber's counsel moved in limine for an order

d irecting the government to refrain from offering or alluding to

evidence of d rug manufacturing by defendant. Such evidence,

defendant argued, should be excluded under Federal Rule of Evidence

404(b) as evidence of an extrinsic offense offered to prove that he

was a person of bad character. 7 Defendant also argued that even if

the drug-related evidence was relevant, its probative value was

substantially outweig hed by the danger of unfair prejudice. The

trial court denied defendant's motion and overrule d similar

objections interposed by defendant at trial. On appeal, defendant

argues that the extrinsic offense evide nce was prejudicial, and

that the district court erred by overruling his repeated objections

and by failing to articulate probative value/preju dice findings

before admitting the challenged evidence.9

One of the dangers inherent in the admission of "other acts"

evidence is that the jury might convict the defendant "not for the

offense charged but for the extrinsic offense." United States v.

Beechum

, 582 F.2d 898, 914 (5th Cir. 1978), cert. denied

, 99 S.Ct.

1244 (1979). "This danger is particularly great where, as here,

the extrinsic activity was not the subject of a conviction; the

jury may feel that the defendant should be punished for that

activity even if he is not guilty of the offense charged." I d. To

guard against this danger, Rule 404(b) excludes extrinsic offense

evidence when it is relevant solely to the issue of the defendant's

character. Even if the extrinsic act evidence is probative for

"other purposes" recognized by Rule 404(b), such as showing motive

or intent, the probative value of the evidence must be weighed

against its prejudicial impact.

The government says that Rule 404(b) i s inapplicable here

because the challenged evidence--the chemicals and other indicia of

drug manufacturing--was not extrinsic. Rather, because the drugre lated items found in Ridlehuber's house are commonly found in

drug labs, those items were "inextricably linked" with the

contraband weapon. In the government's view, such evidence is

admissible to allow the jury to evaluate all of the circumstances

under which the defendant acted. In making this argument, the

government relies on a line of precedent which holds that

"[e]vidence of an uncharged offense arising out of the same

transactions as the offenses charged in the indictment is not

extrinsic evi dence within the meaning of Rule 404(b), and is8 The defendant in Randall negotiated by telephone the sale

of two kilograms of cocaine. Drug enforcement agents monitored and

taped the telephone transaction. Randall , 887 F.2d at 1264. The

tape, which contained admissions by the defendant of his

involvement in other crimes, was admitted in evidence and heard by

the jury. Quite literally, the evidence of uncharged offenses

arose out of the same transaction a s the offense charged in the

indictment, and thus was not extrinsic evidence within the meaning

of Rule 404(b). S ee also United States v. Kloock , 652 F.2d 492,

495 (5th Cir. 1981) (false driver's license part of same

transaction when found in possession of defendant who attempted to

smuggle cocaine through customs).

10 the refore not barred by the rule." U nited States v. Maceo

, 947

F.2d 1191, 1199 (5th Cir.), cert. denied , 112 S. Ct. 1510 (1992).

The government's reliance on this line of cases is misplaced.

In Maceo , the offense charged in the indictment was conspiracy to

import and possess cocaine with intent to distribute it. M aceo

,

947 F.2d at 1193. The evidence of uncharged offenses admitted at

trial was that one of the defendants, an attorney, used cocaine

with the drug traffickers and accepted cocaine as legal fees for

services he rendered in connection with the drug conspiracy. Id.

at 1198. This "other acts" evidence was part and parcel of the

conspiracy itself. The defendant's use of cocaine with the drug

traffickers helped prove that th e defendant knew about the drug

conspiracy, and the cocaine-for-legal-advice arrangement actually

advanced the conspiracy. T hus, we held that the challenged

evidence "was not extrinsic; it was 'inextricably intertwined with

the evidence used to prove the crime charged, [and] is admissible

so that the jury may evaluate all of the circumstances under which

the defendant acted.'" I d. (quoting United States v. Randall

, 887

F.2d 1262, 1264 (5th Cir. 1989). 811

The connection here between the offense charged in the

indictment and evidence of the uncharged offense is not so clear.

W e cannot say, for example, that the drug-related evidence arose

out of the weapons charge. On the contrary, under the

prosecution's theory of the case the opposite was true. The

government argued that the shotgun was just a cog in the wheel of

a larger criminal enterprise: a clandestine drug lab. The problem

is that the government did not prove the existence of a drug lab--

it did not have sufficien t evidence to do so. If the proof were

reversed and Ridlehuber was charged with and convicted of running

a drug lab, with the shotgun admitted over objection, the result

might be different. Under that scenario, the sawed-off shotgun--a

weap on commonly found in illegal drug labs--might fairly be

characterized as "intrinsic" evidence since possession of the gun

could be said to arise out of the same transaction as the offense

charged. C f. United States v. Hughes

, 441 F.2d 12, 20 (5th Cir.),

cert. denied

, 92 S.Ct. 156 (1971) (although unchar ged, guns

admissible because they were as much a part of overall

c ounterfeiting operation as printing press). But the government

did not charge Ridlehuber with running a drug lab and the evidence

adduced at trial did not prove the existence of a clandestine lab.

Thus, we cannot allow the prosecution's unpro ven drug lab theory

dictate what is and is not extrinsic of the charged offense.

Furthermore, this is not a situation in which the "other acts"

eviden ce falls outside of Rule 404(b)'s purview because the12

evidence of the charged and uncharged offenses both were part of a

"single criminal episode." S ee

, e.g.

, United States v. Carpenter

,

9 63 F.2d 736, 742 (5th Cir.), c ert. denied

, 113 S.Ct. 355 (1992)

(where defendant hid gun and crack pipe under seat of police

cruiser, evidence that crack pipe found beside firearm not

extrinsic because both part of single criminal episode); U nite d

States v. Torres

, 685 F.2d 921, 924-25 (5th Cir. 1982) (sample

transactions not extrinsic because they "were necessary

preliminaries to the larger sale that led to defendants' arrests").

The only "criminal episode" proven here was possession of a shortbarreled shotgun. The rest is conjecture.

Having determined that the chemicals and other indicia of drug

manufacturing was extrinsic offen se evidence, we must decide

whether the trial court should have excluded it. In Beechum , 582

F.2d at 911, this Court outlined a two-step test to determine the

admissibility of extrinsic evidence under Rule 404(b). Evidence of

extrinsic acts is admissible if, as required by Rule 404(b), the

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

character, and if, as Rule 403 requires, its probative value is not

substantially outweighed by its prejudicial impact. S ubsequently,

in United States v. Robinson

, 700 F.2d 205, 213 (5th Cir. 1983), we

held that "an on-the-record articulation by the trial court of

Beechum's probative value/prejudice inquiry [is required] when

requested by a party."9 Apparently, the trial court ruled on defendant's Rule

404(b) motion at a brief, off-t he-record sidebar conference that

occurred after opening statements but befor e the prosecution's

case-in-chief. Based on the parties' description of this sidebar

conference, the district court's ruling would not hav e satisfied

Robinson even if it had been on-the-record. The court did not make

any findings as to the relevancy of the drug-related evidence or

whether the probative value of the evidence was substantially

outweighed by its prejudicial effect. The court merely denied

defendant's motion after hearing counsels' arguments.

13 The trial court did not articulate its findings on the record

with respect to the extrinsic offense evidence. 9 If a request for

on-the-record findings was made, the district court's "[f]ailure to

make such findings necessitates remand 'unless the factors upon

which the pro bative value/prejudice evaluation were made are

readily apparent from the record, a nd there is no substantial

uncertainty about the correctness of the ruling." U nited States v.

Zabaneh

, 837 F.2d 1249, 1262 (5th Cir. 1988) (quoting Robinson

, 700

F.2d at 213). I t is debatable whether a request for on-the-record

findings was made in this case. We need not decide that issue,

however, because application of the two-part Be e chum analysis

mandates remand in any event.

Beechum requires that we first determine whether the extrinsic

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

character. B eechum

, 582 F.2d at 911. To make that determination,

the Court must address the thresh old question of whether the

government offered sufficient proof demonstrating that the

de fendant committed the alleged extrinsic offense. I d. at 913;

Zabaneh

, 837 F. 2d at 1262. "If the proof is insufficient, the

judge must exclude the evidence because it is irrelevant."14

Beechum , 582 F.2d at 913. Rule 104(b) supplies the standard for

determining the admissibility of extrinsic offense evidence: "the

preliminary fact can be decided by the judge against the proponent

only where the jury could not reasonably find the preliminary fact

to exist." Id.

Here, the government did not prove, or attempt to prove, that

Ridlehuber's possession of the chemicals and other items, such as

thermometers, tubing, a Pyrex funnel, and rubber stoppers, was in

itself an illegal act. Rather, the government presented testimony,

through multiple witnesses, that possession of such materials is

indicative of the illegal manufacture of methamphetamine or

amphe tamine. The question we must decide, therefore, is whether

the government put forth sufficient evidence to show that

Ridlehuber was operating a clandestine drug lab or assembling a lab

with the intent to manufacture methamphetamine or amphetamine. We

think not.

The eviden ce of illegal drug manufacture presented by the

government was quite weak. No drugs were found. Government agents

said Ridlehuber's residence smelled like a drug lab, b ut that

evidence alon e is hardly sufficient. The chemicals found in

Ridlehuber's residence and his father's shop can be used to make

methamphetamine or amphetamine, but two precursor chemicals

necessary for the manufacture of those drugs were not found. What

is more, and what is crucial, all the chemicals had legitimate uses

in Ridlehuber, Sr.'s metal plating business. In fact, except for

three drums of monomet hylamine for which he lacked the proper15

permit, the government returned all the chemicals to Ridl ehuber,

Sr. This evidence is not sufficient under Rule 104(b) to show that

Ridlehuber committed the extrinsic offense. Therefore, the trial

court should have excluded the drug-related evidence.

Even if the government's proof had satisfied Rule 104(b) and

the district court found the extrinsic offense releva nt, the

evidence should have been excluded u nder the Rule 403 balancing

inquiry embodied in second step of the Beechum test. "[T]he

central concern of rule 403 is whether the probative value of the

evidence sought to be introduced is 'substantially outweighed by

the danger of unfair prejudice.'" Id. The drug-related evidence

was probative on the issue of motive; it explained why Ridlehuber

might have a sawed-off shotgun in his residence. Yet the shotgun

itself underc ut the credibility of the prosecution's theory that

Ridlehuber possessed the gun to protect a drug lab (and thus

diluted the probative value of the "other acts" evidence). The gun

at issue cannot be cocked wit hout a tool, such as a pen or

screwdriver--hardly the weapon of choice in a gunfight.

The danger of unfair prejudice from admission of the drugrelated evidence, by contrast, was grea t. The clandestine

manufacture of controlled substances like methamphetamine and

amphetamine is the kind of offense for which the jury may feel the

defendant should be punished regardless of whether he is guilty of

the charged offense. Cf. Kloock , 652 F.2d at 495 (false driver's

license "highly probative" of drug smugglers attempt to conceal his

identity while carrying false license not kind of offense likely to1 0 According to Ridlehuber, Sr.'s testimony, even the law

enforcement personnel who seized the shotgun were not sure that its

dimensions were illegal. On the day of the search, the officers

borrowed a tape measure from Ridlehuber, Sr. to check barrel length

and overall length of the shotgun.

16 inflame jury's passions against defendant). And this is not a case

like United States v. Aleman

, 592 F.2d 881, 886 (5th Cir. 1989),

where the prejudicial effec t of extrinsic offense evidence was

mitigated by the government's presentation of "substantial evidence

of [] guilt in addition to the challenged evidence." The weaponscharge evidence here was not particularly strong mainly because the

shotgun itself was not blatantly shortened, and there was no

evidence that Ridlehuber ever handled the shotgun or inspected it

closely. 10

Furthermore, the prejudicial impact of the drug-related

evidence was magnified by the prosecution's focus on that evidence.

A significant portion of the total volume of testimony heard by the

jury concerned drug manufacturing , and one witness testified

exclusively about such activity. S ee Zabaneh

, 837 F.2d at 1265

(danger of unfair prejudice exacerbated when testimony focused on

extrinsic offense and one witness's testimony pertained entirely to

extrinsic offense). Under these circumstances, the trial court's

instructions to the jury about the limited use of the extrinsic

offense eviden ce was not sufficient to alleviate any unfair

prejudice that may have resulted from admission of that evidence.

C o ntrary to the government's assertion, United States v.

Smith

, 930 F.2d 1081 (5th Cir. 1991) is not controlling here. The

defendant in Smith was convicted of illegal possession of firearms.1 1 The dissent quotes liberally from Smith but fails to grapple

with this key factor supporting our conclusion in S mith that

admission of the drug evidence did not run afoul of Rule 403.

17 State police seized the guns during a search of a house i n which

the defendant lived. S mith

, 930 F.2d at 1083. Probable cause for

the search derived from the odor of amphetamine outside the house.

Id. at 1087 n.4. During the trial defense counsel suggested to the

jury that the government had no basis to conduct the search that

led to the seizure of six guns. I d. Although it had previously

refused to admit the extrinsic offense evidence, the trial court

allowed the government to present e vidence of drug dealing,

including that of ficers detected the odor of an amphetamine

precursor, to counter defense counsel's suggestion.

On appeal, th e defendant claimed that the drug-related

testimony should have been exclu ded under Rule 402 and 403. We

affirmed Smith's conviction, noting that any prejudice resulting

from the drug -related evidence "was overcome by its intimate

connection with the officers' motives for obtaini ng warrants" to

search the premises. I d. at 1087. Since the defendant called into

question the basis for the search, we held that the extrinsic act

evidence was "necessary to inform the jury of the circumstances of

Smith's offense ." I d. 11 Unlike S mith

, where exclusion of the

extrinsic offense evidence would have "distorted the jury's view of

the offense" charged, Id.

, there are no special circumstances

warranting admission of the drug-related evidence in this case.

Indeed, admission of the extrinsic offense evidence here unfairly18

pre judiced defendant and compels reversal of the conviction and

remand for a new trial.

Finally , in contrast to the instant case, the circumstances

presented in United States v. Quintero

, 872 F.2d 107 (5th Cir.

1989) did not warrant exclusion of the other acts evidence. There,

we upheld the trial court's admission of drug-related evidence in

affirming the defendant's conviction for possession of a firearm.

The other acts evidence in Quintero was not a major f ocus of the

government's case as it was here. Indeed, in Q uintero

, the

prosecution took pains to limit reference to the drug evidence and

made no attempt to link the defendant with the heroin found on him

and in his companion's apartment. I d. at 113. And unlike this

case, the evidence in Quintero supporting the underlying weapons

charge was "overwhelming." I d. In light of this overwhelming

proof on the weap ons charge, we observed that even if the trial

judge abused his discretion by admitting the drug evidence, "such

error would be harmless . . ." Id. 113-14.

In sum, if we hold that the drug related evidence in this case

is not extrinsic, the exception to Rule 404(b) embodied in the

"inextricably intertwined" analysis will swallow the rule. This is

so considering (1) the weakness of the proof of drug offenses; (2)

the weakness of the link between the drug offenses and the

particular weapon, which was not very useful for its purported

purpose; and (3) the barely adequate proof of defendant's

possession of the weapon, which makes the impact of the drug1 2 Federal Rule of Criminal Procedure 16(a)(1)(C) provides:

Upon request of the defendant the government

shall permit the defendant to inspect and copy

or photograph books, papers, documents,

photographs, tangible objects, buildings or

places, or copies or portions thereof, which

are within the possession, custody or control

of the governme nt, and which are material to

the preparation of the defendant's defense or

are intended for use by the government as

evidence in chief at the trial, or were

obtained from or belong to the defendant.

19 evidence so much greater. Under these circumstances, Rule 404(b)

prevents the government from bootstrapping evidence into this case.

II. JENCKS ACT

Defendant also challe nges the admission of testimony from

government witnesses John Haig ood, a McLennan County deputy

sheriff, and Robert Wilkerson, a sergeant investigator with the

Texas Department of Public Safety. Defendant maintains that the

testimony of these witnesses violated Fed.R.Crim.P. 16(a)(1)(C) and

the Jencks Act, 18 U.S.C. § 3500. We disagree.

First, defendant complains that Deputy Haigood was permitted

to testify that he fo und the AR-15 ammunition clip on the same

shelf where another officer found the sawed-off shotgun. Defense

counsel objected to Haigood's testimony b ecause, although he had

seen the clip during discovery, he was not told where the clip was

found. Defendant, who quotes Fed.R.Crim.P. 16(a)(1)(C) without

further elaboration, asserts that the trial j udge erred in

overruling the objection. 1220

The disputed testimony, which consists of Haigood's

recollection of events during the search of defendant's residence,

is not subject to discovery under Rule 16(a)(1)(C). That rule

relates to discovery of documents or tangible objects, and does not

require the government to give advance notice of the expe cted

testimony of its witnesses. S ee United States v. Martinez-Mercado

,

888 F.2d 1484, 1489-90 (5th Cir. 1989). Rule 16 says quite plainly

that the only witness statements subject to disclosur e are those

required by the Jencks Ac t. Fed.R.Crim.P. 16(a)(2). The Act is

irrelevant here because Haigood did not prepare an investigative

report, nor was he required to do so. Martinez-Mercado , 888 F.2d

at 1490 (prosecution not required to create Jencks material by

demanding that its witnesses put in writing every matter about

which they intend to testify) (citations omitted).

Second, defendant protests a portion of Sergeant Investigator

Wilkerson 's testimony on rebuttal, which came after defense

counsel's Jencks motion requesting the government to prod uce any

"statements" made by Wilkerson. In his rebuttal testimony,

Wilkerson spoke about conversations he had with defendant's father

in which Ridlehuber, Sr. said his son once had been involved with

drugs. Furthermore, Wilkerson quoted defendant's father as saying:

"there is something strange going on around h ere, and I'm not so

sure my son's not involved." The content of Wilkerson's

conversations with defendant's father were not memorialized in an

offense report, but the s econd statement was apparently recorded

verbatim in Wilkerson's field notes. It appears from the record1 3 The portion of the Jencks Act on which defendant relies

reads:

After a witness called by the United S tates

has testified on direct examination, the court

shall, on motion of the defen dant, order the

United States to produce any statement (as

hereinafter defined) of the witness in the

possession of the United States which relates

to the subject matter as to which the witness

has testified. If the entire contents of any

such statement related to the subject matter

of the testimony of the witness, the court

shall order it to be delivered directly to the

defendant for his examination.

18 U.S.C. § 3500(b).

21 that Wilkerson had the notes with him during his testimony, and

defendant does not allege that trial cou nsel was prevented from

reviewing them.

Defendant contends that the prosecution's failure to produce

Wilkerson's field notes before his rebuttal testimony violates the

Jencks Act. 13 The Act defines the term "statement" in relevant part

as "a written statement made by said witness and signed or approved

by him." 18 U.S.C. § 3500(e)(1). Under M artinez-Mercado

, 888 F.2d

at 1490, the government was not necessarily required to have

Wilkerson memorialize his conversations with Ridlehuber, Sr. in an

offense report that i s covered by the Jencks Act. More to the

point, we previously held that s cattered notes taken during the

course of an investigation "do not fit within the [Jencks] Act's

purview." U nited States v. Ramirez

, 954 F.2d 1035, 1038 (5th

Cir.), cert. denied , 112 S.Ct. 3010 (1992). Therefore, the trial

court was not required to prohibit Wilkerson's testimony.22 III. APPLICATION OF § 5861(d) TO DEFENDANT

Defendant was convicted under 28 U.S.C. § 5861(d), which makes

it unlawful for any person "to receive or possess a firearm which

is not registered to him in the National Firearms Registration and

Transfer Record." Defendant argues that his conviction under §

5861(d) violates due process guaranteed him by the Fifth Amendment

because the government would have rejected his application had he

made one since the law precludes registration of the firearm in

question. In support of this argument, defendant cites U nited

States v. Dalton , 960 F.2d 121 (10th Cir. 1992), and "Publication

603," a 1974 publication from the Bureau of Alcohol, Tobacco and

Firearms ("ATF").

In Dalton

, the Tenth Circuit analyzed the relationship between

18 U.S.C. § 922(o), enacted in 1986 to outlaw the possession of any

machinegun after its effective date, and § 5861(d), which imposes

tax and registration obligations for certain firearms, including

machineguns. The defendant in D alton was convicted under § 5861(d)

& (e), respectively, fo r possessing and transferring an

unregistered machinegun made after the effective date of § 922(o).

Id. at 122. The court held that due process barred the defendant's

conviction because § 5861(d) mandated the registration of a firearm

that the government refused to register due to the ban on

machineguns imposed by § 922(o). I n other words, the court

concluded that compliance with both statutes is impossible. I d. at

122-23; contra United States v. Jones

, 976 F.2d 176, 182-83 (4th

Cir.), cert. denied , 113 S.Ct. 2351 (1993).1 4 The substance of the passage quoted in defendant's brief

reflec ts current ATF regulations. S ee 27 C.F.R. 179.84-86,

179.101(b), (f).

23 Regardless of whether Dalton embodies a correct statement of

t he law, it offers no help to defendant, who was convicted of

possessing a short-barreled shotgun, not a machinegun. Unlike

newer machineguns, short-barreled shotguns still may be possessed

legally if registered properly. See 18 U.S.C. §§ 921-928. Thus,

even if Dalton is correct as to the class of machineguns made

illegal by § 922(o), the Tenth Circuit's reasoning in Dalton does

not encompass short-barreled shotguns, which can be possessed

legally under federal law if registered. United States v. Aiken

,

974 F.2d 446, 448-49 (4th Cir. 1992).

Without Dalton

, defendant's argument rests on ATF "Publication

603," which correctly states that private citizens in possession of

unregistered firearms cannot register them. 14 Under the statutory

scheme, the transferor must register the weapon in the name of the

transferee before delivery; only then may delivery occur lawfully.

United States v. Coleman

, 441 F.2d 1132, 1133 (5th Cir. 1971).

Thus, it is true that a transferee may be prosecuted for possessing

an unregistered firearm even though he himself cannot comply with

the registration requirement. U nited S tats v. Bright , 471 F.2d

723, 726 (5th Cir.), cert. denied

, 93 S.Ct. 2742 (1973); United

States v. Sedigh

, 658 F.2d 1010, 1012 (5th Cir.), cert. denied

, 10224

S.Ct. 1279 (1982) (statutory scheme requires that transfe ree not

take possession until transfer and registration approved).

According to defendant, this result offends due process.

This Court disagrees. As we explained some years ago in

United States v. Ross

, 458 F.2d 1144, 1145 (5th Cir.), cert.

denied , 93 S.Ct. 167 (1972):

Section 5861(d) making possession of an unregistered weapon unlawful is part of the

web of regulations aiding enforcement of the

transfer tax provision in [26 U.S.C.] § 5811.

Having required payment of a transfer tax and

registration as an aid in collection of that

tax, Congress under the taxing power may

reasonably impose a penalty on possession of

unregistered weapons. Such a penalty imposed

on transferees ultimately discourages the

transferor on whom the t a x is levied from

transferring a firearm without paying the tax.

Through this statutory sche me, Congress encourages compliance by

rendering as contraband any fir e arm transferred without prior

registration, Aiken

, 974 F.2d at 448, and " no transferee can

'purify ' the 'tainted' weapon by registering it after transfer."

United States v. Aiken

, 787 F. Supp. 106, 108 (D. Md. 1992). While

defendant may dispute the fairness or efficacy of this enforcement

mec hanism, "[t]he requirement that a transferee must refuse to

accept possession of an unregistered firearm is rationally designed

to aid in the collection of taxes imposed by other provisions of

the Act." Id.

, aff'd , 974 F.2d 446 (5th Cir. 1992).1 5 In addition to asserting a sufficiency of the evidence

challenge, Ridlehuber claims his tria l counsel failed to provide

him constitutio nally effective assistance and that the court

misapplied the sentencing guidelines. Having decided to remand for

a new trial, we need not address these issues.

16 During the search of a house leased by Harold

Ridlehuber, Sr., for the use of his son, the defendant,

officers found a short-barreled Stevens Savage 20-gauge

shotgun resting on an open shelf in the kitchen. Next

to the shotgun, the officers found an am m unition clip

for a Colt AR-15 rifle. In another part of the house

the officers found a Mossberg 20-gauge shotgun of legal

len gth standing upright against a wall quite near a

door, two more AR-15 clips and a box of 20-gauge shells.

A few 20-gauge casings were found ont he driveway. In

addition to the weapons, the officers found the

following: a drum containing 230 pounds of sulfuric

acid, two gallons of ether, a can of ether starting

fluid, a pan containing aluminum shavings, a hot plate,

tubing, a Pyrex funnel, thermometers, and rubber

stoppers.

Search warrants were also executed at Ridlehuber, Sr.'s

home and at his place of business, a Hillsboro metal

plating shop where defendant worked with his father. In

Ridlehuber, Sr.'s house was a Colt AR-15 rifle and

magazines, w hich Ridlehuber, Sr. said belonged to his

son. At the business office, agents seized numerous

chemicals including phenylacetonitrile, ethyl acetate,

sodium hydroxide, monomethylamine, ether, muriatic acid,

acetone, and reagent alcohol. In defendant's truck,

parked at his father's office, was a loaded .45 caliber

pistol.

Slip op. at 2.

25 In sum, § 5861(d) is not unc onstitutional as applied to

defendant. 15

We REVERSE the judgment of conviction and REMAND the case to

the District Court.

EMILIO M. GARZA, Circuit Judge, dissenting:

The majority holds that, in a prosecution for possession of an

unregistered shor t-barrel shotgun in violation of 26 U.S.C.

§ 5861(d), "chemicals and other indicia of drug manufacturing 1 617 Section 5845 states:

For the purpose of this chapter ))

(a) Firearm. )) The term "firearm" m eans . . . ; (2) a weapon made

from a shotgun if such weapon as modified has an overall length of

less than 26 inches or a barrel or barrels of less than 18 inches in

length.

18 Sect ion 5861 states:

It shall be unlawful for any person ))

. . . . (d) to receive or possess a firearm which is not registered to him

in the National Firearms Registration and Transfer Record[.] [obtained pursuant to lawful search warrants] was extrinsic offense

evidence" under Rule 404(b) of the Federal Rules of Evidence, slip

op. at 12, and concludes that "admission of th[is] ex trinsic

offense evidence

. . . unfairly prejudice[d] defendant and compels

reversal of the conviction and remand for a new trial." I d. at

17-18. Because our circuit's well-established jurisprudence

s upports the opposite conclusion )) that such evidence is not

extrinsic evidence under Rule 404(b), but rather intrinsic

circumstantial evidence of knowledge and possession of the

shotgun )) I respectfully dissent.

Harold Ridlehuber, Jr. was convicted of possession of an

unregistered short-barreled shotgun, in violation of 26 U.S.C.

§ 5861(d). Section 5861(d) requires that certain firearms, 1 7

including sho rt-barreled shotguns, be registered in the National

Firearms Registrat ion and Transfer Act. 1 8 S ee 26 U.S.C. §§ 5845,

5861(d). Under this statutory scheme, the transferor must register

the weapon in the name of the transferee before delivery; only

after registration may delivery occur lawfully. S ee United States

v. Coleman, 441 F.2d 1132, 1133 (5th Cir. 1971).

The statute makes it unla wful for any person19 The district court correctly instructed the jury:

For you to find the defendant guilty of this crime, you must be

convinced that the government has proved each of the follo w ing

beyond a reasonable doubt:

First : That the defendant knew he had the gun described in the

indictment in his possession;

Second : That the guns [sic] was a weapon made from a shotgun and

had an overall length of less than 26 inches or a barrel

of less than 18 inches in length;

Third : That the defendant kn e w of the characteristics of the

gun, e.g. that the weapon was a shotgun having an

overall length of less than 26 inches or a barrel of

less than 18 inches in length;

Fourth : That this gun was or could readily h ave been put in

operating condition; and

Fifth : That this gun was not registered to the defendant in the

National Firearms Registration and Transfer Record. It

does not matter whether the defendant knew that the gun had to be registered."

Record on Appeal at 109; see also 5th Circuit Pattern Jury Instructio ns 199

(Criminal Cases) (1990).

-27-

"to receive or possess a firearm which is not

registered to him." 26 U.S.C. § 5861(d). The

"only knowledge required to be proved [is]

that the instrument

. . . was a firearm."

[United States v.] Freed, 401 U.S. [601,] 607,

91 S. Ct. [1112,] 1117 [(1971)]. Similarly,

to establish an unlawful transfer, 26 U.S.C.

§ 5861(e), mere knowledge that the instrument

was a f irearm is sufficient. It is not

necessary in either case that the charged

party know that his reception, possession, or

transfer of the firearm violated the Act.

United States v. Moschetta, 673 F.2d 96, 100 (5th Cir. 1982). 19 "As

used in the Act, the word `firearms' is a term of art that includes

primarily weapons thought to be of a military nature and of no

legitimate use for spor t or self-defense." U nited States v.

Anderson, 885 F.2d 1248, 1250 (5th Cir. 1989) (en banc). Although

the Act requires no specific intent or knowledge that a firearm was

unregistered, see Freed, 40 1 U.S. at 607, 91 S. Ct. at 1117, "we

[have] concluded that a conviction should require that the charged

party kn[o]w it was a `firearm' in the Act sense, not that he (or-28-

she) merely kn[o]w it was a firearm [in the ordinary sense]."

Anderson, 885 F.2d at 1251. In establishing this limited m ens rea,

we recognized that in most cases knowing possession of a "firearm"

in the Act sense will be provable if it exists because "a jury can

ordinarily infer knowledge of their nature from the possession of

such illegal items and the surrounding circumstances." I d. at 1255

n.13. The majority excludes any inference of knowledge or

possession "from . . . the surrounding circumstances."

Rule 402 is the "baseline" of the Federal Rules of Evidence.

See Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786,

2793 (1993). "All relevant evidence is admissible, except as

otherwise provided by the Constitution of the United States, by act

of Congress, by these rules, or by other rules prescribed by the

Supreme Court pursuant to statutory authority. Evidence which is

not relevant is not admissible." Fed. R. Evid. 402. Rule 401

defines "relevant evidence" as "evidence having any te ndency to

make the exis tence of any fact that is of consequence to the

determination of the action more probable or less probable than it

w ould be without the evidence." Fed. R. Evid. 401. "The rule's

basic standard of relevance thus is a liberal one." Daubert, 113

S. Ct. at 2794.

In United States v. Smith, 930 F.2d 1081 (5th Cir. 1991), a

case extremely similar to the facts here, we held that a district

court's decision to admit drug-related evidence where the defendant

was charged with federal firearms violations did not run afoul of

Rules 402 or 403 of the Federal Rules of Evidence. I d. at 10 87.20 Compare supra n.1.

2 1 Smith was charged as a felon in possession of a firearm, in violation

of 18 U.S.C. § 922(g)(1), and was subject to a sentence enhancement pursuant to

18 U.S.C. § 1924(e)(1) because he had previously been convicted of three violent

felonies or serious drug offenses.

-29- As in the ins tant case, a house occupied by Smith was searched

pursuant to a search warrant for drugs.

T he odor of amphetamine permeated the house, and six

guns, f our of them loaded, were recovered from various

rooms. Glassware and condenser tubes known to be used in

the ma nufacture of amphetamine were stashed in an

upstairs closet and later determined to bear the

fingerprints of both the defendant and Randy Smith.

Id. at 1083-8 4. 2 0 "[A] federal grand jury returned a three count

indictment charging the defendant with federal arms violations." 21

Id. at 1084. Smith claimed that drug-related testimony should have

been excluded as irrelevant under Fed. R. Evid. 402 or as unfairly

prejudicial under Rule 403. Id. at 1087. We held, however, that

the district court's decision to admit this evidence "did not run

afoul of Rule 402." Id.

Evidence of drug dealing was undoubtedly relevant here.

In this Circuit, the jury is perm itted to view and

consider the entire circumstances surrounding an alleged

offense. Thus, in U nited States v. Randall, 887 F.2d

1265 (5th Cir. 1989), the defendant was charged w ith

carrying a firearm during cocaine trafficking. Yet this

court held that evidence regarding marijuana dealing was

admissible, because evidence which is "inextricably

intertwined with . . . evidence used to prove the crime

charge is admissible so that the jury may evaluate all of

the circumstances under which the defendant acted. Id.

at 1268; see also United States v. Sepulveda, 710 F.2d

188, 189 (5th Cir. 1983).

Id. (emphasis added).

As the majority acknowledges, the drug-related evidence found

in Ridlehuber's house was relevant "to provide an explanation for-30-

why the gun w as in the house." Slip op. at 3. The challenged

evidence served exactly this purpose, as "[t]he evidence relating

to drugs provided a motive for the defendant's possession of the

shotgun." I d. This is particularly true given our recognition

that guns are "tools of the trade." U nited States v. Goff, 847

F.2d 149, 175 (5th Cir.) (attribution omitted), cert. denied, 488

U.S. 932, 109 S. Ct. 324, 102 L. Ed. 2d 341 (1988).

Although it acknowledges the relevance of the drug-related

evidence, the maj ority holds that such evidence constituted

extrinsic offense evidence under Fed. R. Evid. 404(b). Rather than

citing authority to support its holding, the majority distinguishes

the instant case from cases such as U nited States v. Maceo, 947

F.2d 1 191 (5th Cir. 1992), where we held that "[e]vidence of an

uncharged offense arising out of the same transactions as the

offenses charged in the indictment is not extrinsic evidence within

the meaning of Rule 404(b ), and is not therefore barred by the

rule." I d. at 1199. Based on this language in M aceo, the majority

would limit the term "intrinsic" to offenses which "ar[i]se out of

the [charged offense]." Such analysis is legally unconvincing and

has no support in our prior jurisprudence.

In United States v. Quintero, 872 F.2d 107, 108 (5th Cir.

1989), cert. denied, 110 S. Ct. 2 586 (1990), law enforcement

officials obtained a search warrant pursuant to the defendant's

arrest for possession of heroin, and upon searching the apartment,

found heroin, drug paraph ernalia, and two rifles. The defendant

w as indicted on two separate counts for being a three-time-31-

convicted felon in possession of a firearm, in violation of 18

U.S.C. §§ 922(g)(1), 924(e)(1). S ee id. at 113. In upholding the

trial court's evidentiary ruling allowing the drug-related evidence

at trial, we did not inquire whether the drug-related evidence

"arose out of" of the weapons charges. We instead recognized that

the trial court did not abuse its discretion in admitting the

evidence where "the officer's search for heroin was part and parcel

of the general description of events leading to [the defendant's]

arrest and the discovery of the weapons." I d. We therefore found

the drug-related evidence to be "inextricably intertwined with the

offense charged," even though the drug-related evidence di d not

"arise out of" the weapons charges. Id.

Accordingly, I would hold that the drug-related evidence here

was not extrinsic offense evidence under Rule 404(b).