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The Honorable Jean C. Hamilton, United States District Judge for the Eastern

District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 03-1633

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Missouri.

Jesse E. Turnbull, also known as *

Jesse E. Turnbough, *

*

Appellant. *

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Submitted: September 8, 2003

Filed: November 14, 2003

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Before MORRIS SHEPPARD ARNOLD, BEAM, and BYE, Circuit Judges.

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BYE, Circuit Judge.

A jury found Jesse Turnbull violated 18 U.S.C. § 922(g)(3) as an unlawful user

of controlled substances in possession of a firearm. Turnbull appeals arguing the

evidence was insufficient to prove he was an "unlawful user." Turnbull also argues

the district court1

 abused its discretion in instructing the jury on the definition of an
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"unlawful user" and in admitting photographs showing Turnbull involved in drug

activities. We affirm.

I

Just past midnight on May 17, 2001, Franklin County (Missouri) Deputy

Sheriff Charles Subke was traveling south on Highway Hh in rural Catawissa,

Missouri, and smelled an odor commonly associated with the manufacture of

methamphetamine. Deputy Subke called for other officers to help find the smell's

source, which ultimately proved to be a mobile methamphetamine lab (including

plastic funnels, muriatic acid, latex gloves, lithium batteries, and compressed gas

cylinders containing anhydrous ammonia) located on the backyard patio of Turnbull's

residence. Officers arrested an individual named David Creamer as he tried to flee

the site. When officers entered the home in an attempt to locate another person seen

fleeing, they found Turnbull asleep on a couch in the basement. Turnbull lived alone

in the home, in the basement. When questioned, Turnbull admitted he used meth but

denied knowledge of the backyard lab.

After obtaining a search warrant, officers found a coffee cup in the basement

containing Turnbull's driver's license and a white powder residue which tested

positive for methamphetamine; aluminum foil and blotter paper in the basement

refrigerator which tested positive for LSD; drug paraphernalia in the garage,

including baggies containing off-white powder residue, lighters, spoons, a scale,

snorting straws and aluminum foil; several photographs showing Turnbull and others

engaged in drug activities; a baggie of off-white powder in Turnbull's vehicle which

tested positive for methamphetamine; and twenty-three firearms in a locked gun safe

in the basement.

Turnbull was indicted on one count of conspiring to manufacture 50 grams or

more of a mixture or substance containing methamphetamine in violation of 21
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U.S.C. § 841(a)(1), and one count of being an unlawful user of controlled substances

in possession of firearms in violation of 18 U.S.C. § 922(g)(3). During a three-day

jury trial, the government presented the evidence found in the search, as well as

testimonial evidence from Creamer, who pleaded guilty and testified against

Turnbull. He told the jury Turnbull let him cook methamphetamine several times at

Turnbull's residence in exchange for some of the finished product and he had

Turnbull's permission to cook methamphetamine on the night of May 17. Creamer

also told the jury he used methamphetamine with Turnbull at least eight times.

Turnbull testified in his own defense. He admitted using methamphetamine for

a year prior to May 17, but only rarely. Turnbull said the last time he got

methamphetamine from Creamer was a week before May 17. He admitted getting

high off that meth a "couple" times. He further admitted the methamphetamine found

in a secret compartment in his vehicle was his. He denied giving Creamer permission

to cook methamphetamine at his house and denied any knowledge about the LSD

found in his refrigerator. He claimed the photographs depicting him and others

engaged in drug activity were thirteen years old and the substance in the photographs

was baking soda. The government did not test Turnbull to determine if he had drugs

in his system on the night of May 17.

Turnbull requested an instruction which advised the jury "an unlawful user of

a controlled substance is one who uses narcotics so frequently and in such quantities

as to lose the power of self control and thereby pose a danger to the public morals,

health, safety or welfare." The district court declined to give that instruction and

defined "unlawful user" by tracking the definition used by the Treasury Department

in its firearm regulations:

A person who uses a controlled substance and has lost the power of

self-control with reference to the use of controlled substance; and any

person who is a current user of a controlled substance in a manner other
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than as prescribed by a licensed physician. Such use is not limited to the

use of drugs on a particular day, or within a matter of days or weeks

before, but rather that the unlawful use has occurred recently enough to

indicate that the individual is actively engaged in such conduct. A

person may be an unlawful current user of a controlled substance even

though the substance is not being used at the precise time the person

seeks to acquire a firearm or receives or possesses a firearm. An

inference of current use may be drawn from evidence of a recent use or

possession of a controlled substance or a pattern of use or possession

that reasonably covers the present time, . . . .

27 C.F.R. § 478.11.

The jury could not reach a verdict on the count charging Turnbull with

conspiring to manufacture methamphetamine, and the district court declared a mistrial

on that count. The jury convicted Turnbull on the count charging him with

possessing firearms while being an unlawful user of controlled substances. After the

district court sentenced Turnbull to 51 months imprisonment, followed by three years

of supervised release, Turnbull filed this appeal.

II

Turnbull contends the evidence was insufficient to prove he was an unlawful

user of controlled substances. Reviewing this claim de novo, United States v. Cruz,

285 F.3d 692, 697 (8th Cir. 2002), and viewing the evidence in the light most

favorable to the verdict and accepting all reasonable inferences as established, United

States v. Kamerud, 326 F.3d 1008, 1012 (8th Cir. 2003), we disagree. 

Section 922(g)(3) prohibits "an unlawful user of . . . any controlled substance"

from possessing a firearm. The term "unlawful user" is not otherwise defined in the

statute, but courts generally agree the law runs the risk of being unconstitutionally

vague without a judicially-created temporal nexus between the gun possession and
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regular drug use. E.g., United States v. Jackson, 280 F.3d 403, 406 (4th Cir. 2002)

(upholding a district court's determination that the government must establish "a

pattern of use and recency of use" as a reasonable application of the statute); United

States v. Purdy, 264 F.3d 809, 812 (9th Cir. 2001) (rejecting a void-for-vagueness

challenge to § 922(g)(3) where defendant's "drug use was sufficiently consistent,

'prolonged,' and close in time to his gun possession to put him on notice that he

qualified as an unlawful user of drugs") (citation omitted). 

Although Turnbull contends the evidence was insufficient to show a temporal

nexus between his drug use and his possession of guns, by his own admission he had

been using methamphetamine for an extended period of time (one year), and had

become high a couple times within the week of when firearms were found in his

home. The evidence also indicated Turnbull had used methamphetamine with

Creamer at least eight times, had a secret stash of methamphetamine in his vehicle,

had LSD in his refrigerator, his driver's license was found in a coffee cup containing

meth residue (suggesting very recent use), and his home contained numerous drug

paraphernalia and photographs depicting him and others in drug-related activities.

From this evidence the jury could clearly infer a sufficient temporal nexus between

regular drug use and Turnbull's possession of firearms. See United States v. Mack,

343 F.3d 929, 933-35 (8th Cir. 2003) (holding evidence of unlawful use sufficient

where defendant possessed user quantity of marijuana at the time of his arrest and

arresting officers smelled marijuana, and where one month earlier defendant had

confronted witness about theft of his marijuana and fired a gun into the air); United

States v. Oleson, 310 F.3d 1085, 1090 (8th Cir. 2002) (holding evidence of unlawful

use sufficient where user quantity of amphetamine was found on table in defendant's

residence (where he lived alone) and testimony established defendant frequently used

drugs with his customers); United States v. McIntosh, 23 F.3d 1454, 1459 (8th Cir.

1994) (holding evidence of unlawful use sufficient where police found marijuana and

drug paraphernalia in defendant's apartment; defendant admitted using "crank," or

methamphetamine; and defendant admitted being addicted to drugs and alcohol). 
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Turnbull also contends the district court should have defined "unlawful user"

as someone "who uses narcotics so frequently and in such quantities as to lose the

power of self control," citing United States v. Herrera, 289 F.3d 311 (5th Cir. 2002).

Reviewing this issue for an abuse of discretion, see United States v. Stuckey, 220

F.3d 976, 979 (8th Cir. 2000), we find none.

First, we note Herrera was vacated by the Fifth Circuit sitting en banc, and the

§ 922(g)(3) conviction at issue in that case was ultimately affirmed. United States v.

Herrera, 313 F.3d 882, 885 (5th Cir. 2002) (en banc). En banc, the Fifth Circuit

suggested a less restrictive standard than cited in the original panel decision. See id.

(indicating the evidence was sufficient to show regular drug use over an extended

period of time). Second, the Treasury Department's definition seems entirely

consistent with any standard for unlawful use to be gleaned from our prior decisions.

The district court has wide discretion in instructing the jury, and clearly acted within

its discretion when incorporating the Treasury Department's definition of unlawful

user.

Finally, Turnbull claims the district court should not have admitted evidence

of the photographs showing him engaged in drug activity. We review the district

court's decision to admit evidence for an abuse of discretion, United States v. Vesey,

330 F.3d 1070, 1073 (8th Cir. 2003), and find none. The government had the burden

of proving Turnbull's unlawful drug use, and the photographs were clearly relevant

to that issue under Fed. R. Evid. 402. Neither the district court in admitting the

photographs, nor the jury in considering them, was required to accept Turnbull's

claim the photographs were thirteen years old or the substance shown in them was

baking soda.
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III

We affirm the judgment of conviction.

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