United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 98-2123

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United States of America, *

*

Appellee, *

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v. *

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Don D. Howard, *

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Appellant. *

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Appeals from the United States

No. 98-2322 District Court for the 

__________ Western District of Missouri

United States of America, *

*

Appellee, *

*

v. *

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Ruth Potts, *

*

Appellant. *

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Submitted: December 14, 1998

Filed: March 3, 1999

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1

 The Honorable Cynthia Holcomb Hall, United States Circuit Judge for the

Ninth Circuit, sitting by designation.

2The Honorable Gary A. Fenner, United States District Judge for the Western

District of Missouri.

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Before LAY, McMILLIAN, and HALL,1 Circuit Judges.

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HALL, Circuit Judge.

Don Howard ("Howard") appeals his conviction and sentence for aiding and

abetting the possession of ephedrine with the intent to manufacture methamphetamine

in violation of 21 U.S.C. § 841(d)(1). Ruth Potts ("Potts") appeals her sentence after

pleading guilty to aiding and abetting the possession of methamphetamine in

violation of 21 U.S.C. § 841(d)(1). The district court2 sentenced Howard to forty-five

months in prison, and sentenced Potts to twenty-eight months in prison. We have

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm.

I. FACTS

At approximately 11:30 p.m. on January 16, 1996, detectives from the Jackson

County Drug Task Force drove with a confidential informant past Potts' trailer. The

detectives observed Howard's pickup truck parked in front of the trailer. The

detectives dropped off the informant, and returned to the trailer shortly after midnight.

The truck was still parked outside when they returned. Approximately one hour later,

Howard exited the trailer and drove away in his truck. The detectives followed

Howard and called for the Independence Police to make a traffic stop. A police

officer stopped Howard a short time later. 
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While frisking Howard, the officer found over $5500 in cash and a syringe in

Howard's shirt pocket. Howard consented to a search of his truck, where officers

found a loaded .45 caliber handgun under the driver's seat, a second syringe, a glass

pipe with residue on it, and a cellular phone. Howard was arrested. Officers

continued to search the truck, and found in a tool box black tubes and a plastic bag,

both containing white powder. The powder in the bag was moist and smelled of

solvent. When officers asked Howard what was in the tubes, he first stated that they

contained "bunk," but later said they contained ephedrine. Lab tests on the powder

showed that it was a binding agent that contained trace amounts of ephedrine.

At approximately 2:00 a.m. on January 17, 1996, police officers executed a

search warrant for Potts' trailer. Inside the trailer, officers found Potts and two other

individuals, Maasen and Hickerson. Potts' clothing was covered in white powder.

In addition, officers found in the bedroom and bathroom numerous plastic, glass, and

metal containers filled with white powder. Officers also found in the bedroom a

coffee filter that contained methamphetamine residue, and found in the bathroom

unused coffee filters. The bathroom sink also contained a white powder residue. The

powder in the trailer was damp, and the trailer smelled of solvent. The powder was

later determined to be ephedrine. Officers found in Potts' address book two numbers

listed for Howard. In addition, officers found a .44 caliber pistol with ammunition

lying nearby on the floor of Potts' bedroom. Potts stated that neither Maasen nor

Hickerson had been in the bedroom, and Maasen and Hickerson stated that they had

not left the kitchen or living room areas of the trailer.

Howard and Potts were charged with aiding and abetting the possession of

ephedrine with the intent to manufacture methamphetamine in violation of 21 U.S.C.

§ 841(d)(1). Potts pled guilty, and Howard went to trial. At trial, a DEA agent, who

took part in the execution of the search warrant and was qualified as an expert witness

based on his investigations of over 300 methamphetamine labs, testified that in his
3Through the ephedrine reduction process, ephedrine is separated from cold

tablets by combining cold tablets with a chemical solvent and then running the

mixture through a filter. Coffee filters are commonly used.

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opinion Potts' trailer had been used to extract ephedrine from cold tablets.3 In

addition, another of the government's expert witnesses testified that it was probable

that the white powder found in Howard's truck was the waste product from the cold

tablets processed in Potts' trailer. Howard was convicted, and filed a motion for a

new trial or, in the alternative, judgment of acquittal. The district court denied

Howard's motion. At sentencing, the district court enhanced both Howard's and Potts'

sentences for possession of a dangerous weapon under U.S.S.G. § 2D1.1. Howard

and Potts timely appealed.

II. DISCUSSION

A. Sufficiency of the Evidence

Howard contends that the district court erred by denying his motion for

judgment of acquittal because there was insufficient evidence to support his

conviction. We will reverse the district court's denial of Howard's motion for

judgment of acquittal only if, viewing the evidence in the light most favorable to the

verdict and accepting as established all reasonable inferences that support the verdict,

no reasonable jury could have found Howard guilty beyond a reasonable doubt. See

United States v. Barrett, 74 F.3d 167, 168 (8th Cir. 1996); United States v. Ireland,

62 F.3d 227, 230 (8th Cir. 1995). The government introduced overwhelming

evidence that Howard aided and abetted the possession of ephedrine with intent to

produce methamphetamine. 

Howard's truck was parked in front of Potts' trailer for at least an hour and a

half before he was seen leaving the trailer in his truck. Officers found in Howard's
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truck over 5700 grams of moist, solvent-smelling white powder that contained trace

amounts of ephedrine, a key ingredient for manufacturing methamphetamine.

Howard told detectives that the white powder found in his truck was ephedrine. Both

the white powder in Howard's truck and the white powder in Potts' trailer were moist

and smelled of solvent. The government's expert testified that the 400 grams of

ephedrine recovered from Potts' trailer could have produced 135 grams of

methamphetamine. Cf. United States v. Parker, 32 F.3d 395, 402 (8th Cir. 1994)

(allowing inference of intent to distribute from large quantity of methamphetamine).

The government's expert witnesses testified that the binding agent in Howard's truck

was probably the waste product from the ephedrine reduction process that was used

to extract from cold tablets the ephedrine found in Potts' trailer. Howard was arrested

with a loaded gun under his seat, a cell phone in his truck, over $5500 cash and a

syringe in his shirt pocket, a second syringe on the floor of his truck, and a glass pipe

with residue on it. Cf. United States v. Dawson, 128 F.3d 675, 677 (8th Cir. 1997)

(allowing inference of intent to distribute from presence of firearm); United States v.

Delpit, 94 F.3d 1134, 1153 (8th Cir. 1996) (allowing inference of intent to distribute

from "presence of cash, drug paraphernalia, firearms, and other evidence of drugdealing"). Officers found in Potts' trailer a coffee filter that tested positive for

methamphetamine. In addition, an individual had gone to the trailer specifically to

buy methamphetamine. Finally, Howard's name was listed twice in Potts' address

book. Based on the overwhelming evidence of Howard's guilt, we affirm the district

court's denial of Howard's motion for judgment of acquittal.

B. Admission of Expert Testimony

Howard next contends that the district court erred by allowing the government's

expert witness to testify that the white powder found in Howard's truck was probably

the waste product from the ephedrine reduction process performed in Potts' trailer.

We will reverse the district court's decision to admit this testimony only if the district
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court abused its discretion. See United States v. Roulette, 75 F.3d 418, 423 (8th Cir.),

cert. denied, 117 S. Ct. 147 (1996). 

The government's expert testified that cold tablets come in a variety of sizes

and weights, and that they contain varying concentrations of ephedrine. Based on the

amount of ephedrine recovered from Potts' trailer (almost 400 grams) and the amount

of binding agent found in Howard's truck (over 5700 grams), the expert concluded

that, using a variety of cold tablets, the ephedrine found in Potts' trailer "could have

come from and probably did come from" the moist, solvent-smelling powder

containing trace amounts of ephedrine that was recovered from Howard's truck. The

expert was not required to know the specific brand and type of cold tablets used in

the ephedrine reduction process to reach his conclusion. It was enough that the expert

knew the percentage of ephedrine contained in the cold tablets that he used in his

calculations. The district court therefore did not abuse its discretion. Because the

expert's testimony was properly admitted, Howard's due process rights could not have

been violated by the admission of that testimony. 

C. Dangerous Weapon Sentencing Enhancement

Howard and Potts both contend that the district court erred by enhancing their

sentences under U.S.S.G. § 2D1.1 for possession of a dangerous weapon. We will

reverse the district court's dangerous weapons enhancement only if the district court

clearly erred in finding that the .45 caliber handgun found under the driver's seat of

Howard's pickup truck and the .44 caliber pistol found on the floor of Potts' bedroom

were sufficiently connected to the offense. See United States v. Vaughn, 111 F.3d

610, 616 (8th Cir. 1997) (citing United States v. Betz, 82 F.3d 205, 210 (8th Cir.

1996)). The district court did not err because the government satisfied its burden to

show "that a dangerous weapon was present and that it was not clearly improbable

that the weapon had a nexus with the criminal activity." See Betz, 82 F.3d at 210. 
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With respect to Howard, the government showed that a loaded .45 caliber

handgun was present in Howard's pickup truck under the driver's seat in which

Howard was sitting. See id. at 211 (affirming dangerous weapon enhancement where

weapon was readily accessible and loaded). Howard was using the truck to dispose

of the waste product from the ephedrine reduction process that had been conducted

to extract from cold tablets the ephedrine that was to be used to manufacture

methamphetamine. Howard's reliance on United States v. Khang, 904 F.2d 1219 (8th

Cir. 1990), is misplaced. In contrast to the government's stipulation in Khang that the

weapon found with the drugs was unrelated to the crime, id. at 1220-21, the

government here has not conceded that the weapon is unrelated to the crime. See

United States v. Richmond, 37 F.3d 418, 420 (8th Cir. 1994) (distinguishing Khang

on basis of government's stipulation). Similarly, Howard's reliance on United States

v. Shields, 44 F.3d 673 (8th Cir. 1995), is misplaced. In contrast to Shields, in which

the dangerous weapon was found during a search conducted over a month after the

crime was committed, thereby making it impossible to know if the gun had any

connection with the illegal activity, id. at 674, here the weapon was found

simultaneously with the commission of the crime and the arrest. The district court

therefore did not err by concluding that the weapon had a nexus to the crime.

With respect to Potts, the government showed that the .44 caliber pistol was

present in Potts' bedroom. The gun was found on the floor next to ammunition and

amid ephedrine and methamphetamine. See id. (sufficient if weapon readily

accessible and ammunition nearby). Like Howard, Potts misses the mark by relying

on Khang and Shields. In addition, Potts claims that the district court erred because

the gun belonged to Maasen. However, the district court did not clearly err in

applying the weapon enhancement to Potts because she stated that Maasen and

Hickerson had not entered her bedroom the night the trailer was searched, and

Maasen and Hickerson stated that they had remained in the kitchen and living room

that night. The district court therefore did not err by concluding that the weapon had

a sufficient nexus to the crime.
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III. CONCLUSION

Based on the foregoing, we affirm the judgment of the district court.

AFFIRMED.

A true copy.

 ATTEST:

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