                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         DEC 10 2001
                                 TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.                                     Nos. 01-7006 and 01-7007
                                                 (D. Ct. No. 99-CR-92-B)
 LARRY EDWARD DEAN and                                  (E.D. Okla.)
 STELLA LOUISE DEAN ,

               Defendants-Appellants.


                            ORDER AND JUDGMENT *


Before TACHA, Chief Judge, PORFILIO, and BRISCOE, Circuit Judges.


      A jury convicted Larry Edward Dean of distribution of methamphetamine

and possession of methamphetamine with intent to distribute, in violation of 21

U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The district court sentenced him to 168

months imprisonment for each count, to be served concurrently, followed by 36

months of supervised release. The jury convicted Stella Louise Dean of the same

charges. The district court sentenced her to 135 months imprisonment for each



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
count, to be served concurrently, followed by 36 months of supervised release.

Both defendants appealed.

      A jury heard the Deans’ cases in a joint trial that was followed by a joint

sentencing hearing. Larry and Stella Dean’s cases involve the same issues, except

for one additional issue in Stella Dean’s case. We therefore address them in a

joint order and judgment. We exercise jurisdiction pursuant to 28 U.S.C. § 1291

and 18 U.S.C. § 3742 and affirm.

                                   I. Background

      The defendants Larry Dean and Stella Dean are a married couple who, prior

to their arrests, shared a residence in Hugo, Oklahoma. On November 30, 1999,

informant Sheila Taylor used a hidden video camera to record her purchase of a

bag of methamphetamine from Larry and Stella Dean at their home. On

December 2, 1999, officers from the Oklahoma Bureau of Narcotics and the

Federal Bureau of Investigation executed a search warrant at the Deans’ home.

The officers seized drugs from the home and from the person of Stella Dean. The

Deans were arrested later that month and charged with distribution of

methamphetamine and possession of methamphetamine with intent to distribute in

violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.

      Following their convictions and a joint sentencing hearing, the district

court concluded that the Deans were engaged in joint criminal activity, that each


                                        -2-
defendant independently executed certain drug transactions in furtherance of the

joint activity, and that the other defendant could reasonably have foreseen those

transactions. Therefore, pursuant to section 1B1.3(a)(1)(B) of the Sentencing

Guidelines, the district court treated each defendant’s independently completed

drug transactions as relevant conduct for purposes of determining the other

defendant’s base offense level.

                                     II. Discussion

      The Deans make three joint arguments. First, they contend that the trial

court erroneously failed to suppress evidence seized with a defective warrant.

Second, they contend that the trial court made erroneous factual findings as to

drug quantity at sentencing. Third, each defendant asserts that the trial court

erroneously considered drug transactions at sentencing that involved only the

other defendant. In addition, Stella Dean argues that the trial court erred in

admitting evidence when there was a gap in the chain of custody. We hold that

the trial court did not err in any of these respects.

A. The Motion to Suppress

      Police searched the Deans’ house pursuant to a daytime search warrant

issued by U.S. Magistrate Judge James H. Payne. Judge Payne issued the warrant

in Muskogee, Oklahoma on December 1, 1999 at 5:10 p.m. Police served the

warrant at the Deans’ residence in Hugo, Oklahoma (approximately 150 miles


                                          -3-
from Muskogee) on December 2, 1999, and the return was filed on December 9,

1999. Both a “1” and an “8,” one written over the other, were written in the

space where the judge enters language commanding officers to perform the search

by a specific date. There are no initials next to the change. It is impossible to

tell by looking at the warrant which number represents the date originally entered.

      The Deans contend that the changed date leaves the warrant without a

specified period of time, rendering the warrant defective and requiring

suppression of the evidence seized in the subsequent search. We disagree.

      At a suppression hearing, the parties stipulated that Judge Payne would

testify that: (1) he would not issue a daytime warrant for Choctaw County at 5:10

p.m. to be executed on that date; (2) he normally gives seven days for an

execution of a warrant; (3) the number 8 would have been consistent with the

time he normally would give for the service of this warrant; (4) he did not recall

writing an “8” over a “1” on this particular warrant; and (5) he normally would

have initialed any such modification.

      When reviewing a denial of a motion to suppress, we accept the district

court’s factual findings unless clearly erroneous and view the evidence in the

light most favorable to the government. United States v. Hill, 199 F.3d 1143,

1147 (10th Cir. 1999) (quoting United States v. Hargus, 128 F.3d 1358, 1361

(10th Cir. 1997)).


                                         -4-
      Federal Rule of Criminal Procedure 41(c)(1) provides that

      [A warrant] shall command the officer to search, within a specified
      period of time not to exceed 10 days, the person or place named for
      the property or person specified. The warrant shall be served in the
      daytime, unless the issuing authority, by appropriate provision in the
      warrant, and for reasonable cause shown, authorizes its execution at
      times other than daytime.

Fed. R. Crim. P. 41(c)(1).

      Absent a clear constitutional violation, noncompliance with Rule 41 1

requires suppression of evidence only where “(1) there was ‘prejudice’ in the

sense that the search might not have occurred or would not have been so abrasive

if the rule had been followed, or (2) there is evidence of intentional and deliberate

disregard of a provision in the Rule.” United States v. Hugoboom, 112 F.3d

1081, 1087 (10th Cir. 1997) (citations omitted). Nothing here indicates that the

search would not have occurred if the date change had been initialed. The Deans

insinuate that the date was possibly changed by an officer after the fact, which

would certainly violate the second prong of Hugoboom. However, they offer no

direct evidence to this effect. The only possible evidence is the “8” written over

the “1.” However, the district court found, and the facts clearly support, that

December 8 was the operative date. It is unlikely that Judge Payne would have



      1
        Since we hold that any violation under these circumstances would not
have a remedy, we do not directly address the question of whether there was
actually a violation of Rule 41.

                                        -5-
issued a daytime warrant at 5:10 p.m. to be served 150 miles away on the same

day. These facts are consistent with Judge Payne’s accidentally writing the date

the warrant was issued (“1”) in the blank, realizing his error, and correcting it

with an “8.” Thus, neither of the prongs from Hugoboom is met, and there is no

clear error in the district court’s finding. We affirm the district court’s denial of

the motion to suppress.

B. Credibility of the Witnesses

      The Deans contend that Sheila Taylor was an unreliable witness and that

the district court committed clear error when it relied upon Taylor’s testimony to

determine the relevant drug quantity during sentencing. We review a district

court’s determination of witness credibility for clear error. United States v.

Keeling, 235 F.3d 533, 535 (10th Cir. 2000), cert. denied, 121 S. Ct. 2575 (2001).

      Taylor confessed to memory problems as the result of drug use and

admitted that she did not have specific records of her drug transactions.

However, she also provided detailed testimony regarding the amount of drugs she

bought from the Deans, and she expressed certainty regarding the amounts she

purchased and used. She provided specific instances of her drug use and

estimated the frequency of her drug transactions with the Deans. To the extent

that her testimony at the sentencing hearing differed from her earlier statement

about drug quantity, the court relied on her lower estimates. Another witness,


                                          -6-
Amanda Cherry, testified that she and others she knew regularly obtained

methamphetamine from Larry and Stella Dean. While Cherry’s testimony was not

offered or used to increase the drug quantities for sentencing purposes, it did

provide corroboration for Taylor’s testimony that Larry Dean regularly distributed

methamphetamine.

      While Taylor was not a perfect witness, there was sufficient basis for

finding her testimony about drug quantity reliable. The district court did not

commit clear error in crediting her testimony.

C. Use of Relevant Conduct at Sentencing

      Each defendant contends that the district court incorrectly considered the

other’s conduct as relevant conduct for sentencing purposes.

      Section 1B1.3(a) in the Sentencing Guidelines Manual directs the

sentencing court to determine a defendant’s base offense level on the basis of the

defendant’s acts and omissions, but also   “in the case of a jointly undertaken

criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by

the defendant in concert with others, whether or not charged as a conspiracy), all

reasonably foreseeable acts and omissions of others in furtherance of the jointly

undertaken criminal activity.” The commentary describes this section’s

application to drug offenses: “[T]he defendant is accountable for all quantities of

contraband with which he was directly involved and, in the case of a jointly


                                           -7-
undertaken criminal activity, all reasonably foreseeable quantities of contraband

that were within the scope of the criminal activity that he jointly undertook.”

U.S. Sentencing Guidelines Manual § 1B1.3, cmt. 2.     The district court found that

the Deans were engaged in a joint criminal activity, that each had committed acts

in furtherance of that activity, and that these acts were reasonably foreseeable by

the other. The court therefore treated acts by each defendant as relevant conduct

in determining the other defendant’s base offense level.

      We review for clear error factual findings underlying the district court’s

determination of the base offense level. United States v. Roederer, 11 F.3d 1467,

1477 (1993). The relevant questions here are whether the attributed conduct was

“in furtherance of” a joint activity and whether it was “reasonably foreseeable” by

the defendant to whom it was attributed.

      There was ample evidence that the Deans, from at least April 1998,    2
                                                                                were

engaged in the “jointly undertaken criminal activity” of providing Taylor with a

regular supply of methamphetamine and that each made sales “in furtherance of”

that activity. Taylor testified at the joint sentencing hearing that she regularly

obtained methamphetamine from Larry and Stella Dean. Taylor further testified

that the Deans provided her with about half of her methamphetamine supply each


      2
        Taylor testified that she first met Stella Dean and purchased
methamphetamine from her in April of 1998. The district court attributed to
Stella Dean no conduct that occurred before April 1998.

                                         -8-
week. She specifically testified that Larry Dean, or sometimes Stella Dean,

delivered drugs to her house or to her place of employment. She explained that

when she visited the Deans’ home, either Larry or Stella Dean would provide her

with methamphetamine. Taylor also testified that, after she had driven someone

to Austin to purchase methamphetamine for Larry Dean, Stella Dean came to her

home and picked it up. This testimony was sufficient to support a finding by the

preponderance of the evidence that the Deans regularly provided Taylor with

drugs and that they engaged, both independently and together, in drug transactions

in furtherance of this jointly undertaken activity.   3



       The remaining question is whether each defendant could reasonably have

foreseen the acts of the other. Imputation of drug quantities does not require that

the defendant have had direct involvement in the transactions. U.S. Sentencing

Guidelines Manual § 1B1.1(a)(1)(B);        United States v. Williams , 897 F.2d 1034,

1041 (10th Cir. 1990).

       Taylor testified that she met with the Deans both independently and

together from April 1998 until November 30, 1999. She testified that she

regularly bought similar amounts of methamphetamine from the Deans, and that


       3
        We find no merit to the defendants’ arguments that each received no
benefit from the other’s transactions. These were not isolated transactions. Both
Deans were engaged in the joint activity of supplying Taylor with
methamphetamine, and both Deans benefitted from the maintenance of the
profitable relationship.

                                             -9-
her purchases were from Larry Dean, Stella Dean, or both. Larry Dean could

reasonably have foreseen that Stella Dean would provide the drugs to Taylor,

even on occasions where Larry Dean was not present. Similarly, Stella Dean

could reasonably have foreseen that Larry Dean would provide methamphetamine

to Taylor, even if we accept Stella Dean’s assertion that she could not foresee that

he would sometimes accept sex as payment, which he did. We therefore hold that

the district court did not err in attributing each defendant’s conduct to the other

for purposes of calculating the base offense level.

D. The Chain of Custody

      Stella Dean contends that the district court improperly permitted the

government to introduce evidence at trial where the chain of custody had been

broken. Agent Brian Veazey seized 6.6 grams of methamphetamine that

informant Taylor bought from the Deans on November 30, and he seized 0.39

grams of methamphetamine from Stella Dean during the execution of the search

warrant on December 2. Veazey submitted both items to the Oklahoma State

Bureau of Investigation (OSBI) laboratory in McAlester, Oklahoma, and they

were later moved to the OSBI laboratory in Durant, Oklahoma and tested there.

Veazey testified that he sealed the evidence before submitting it to the McAlester

laboratory. The forensic chemist who tested the evidence at the Durant laboratory

testified that both items were sealed when she received them, that there were no


                                         - 10 -
signs of tampering, and that she broke the seals. The chemist also testified that

the initials on the evidence envelopes indicated that the supervisor of the

McAlester laboratory had transported the evidence to Durant. There were,

however, no submittal sheets with the evidence to show its receipt at the Durant

laboratory.

      We review a decision to admit evidence for abuse of discretion. United

States v. Cardenas, 864 F.2d 1528, 1530 (10th Cir. 1989).

      Before admitting or excluding real evidence, the trial court must
      consider the nature of the evidence, and the surrounding
      circumstances, including presentation, custody and probability of
      tampering or alteration. If, after considering these factors, the trial
      court determines that the evidence is substantially in the same
      condition as when the crime was committed, the court may admit it.

Id. at 1531. Absent evidence of tampering, deficiencies in the chain of custody

go to the weight of the evidence and not its admissibility. Id.; United States v.

Mora, 845 F.2d 233, 237 (10th Cir. 1988).

      The only break in the chain of custody involved the transportation from the

McAlester laboratory to the Durant laboratory. Although the defendants assert

that tampering may have occurred, there was no evidence to suggest actual

tampering.   4
                 Moreover, “[t]he trial court need not rule out every possibility that


      4
        The defendant’s only specific argument to support the contention that
tampering may have occurred is that the total amount of these two items, 6.99
grams, is coincidentally close to 7 grams, which is the amount Taylor thought she
                                                                     (continued...)

                                           - 11 -
the evidence underwent alteration; it need only find that the reasonable

probability is that the evidence has not been altered in any material aspect.”

Cardenas, 864 F.2d at 1532. We therefore hold that the district court did not

abuse its discretion in admitting the evidence.

                                  III. Conclusion

      For these reasons, we AFFIRM the rulings of the district court on all

issues.

                                       ENTERED FOR THE COURT,


                                       Deanell Reece Tacha
                                       Chief Circuit Judge




      4
        (...continued)
was buying on November 30. Stella Dean argues that this coincidence suggests
that the .39 grams seized from her on December 2 may in fact have been taken
from the amount Taylor purchased on November 30, reducing the weight of the
original amount to 6.99 grams. This coincidence, however, does not alter the
reasonableness of the trial court’s finding that the evidence had not been altered.
There is no evidence to demonstrate that a precise and accurately calibrated scale
was used to measure an amount for Taylor’s purchase on November 30. Instead,
there is reason to be skeptical of the accuracy of a drug distributor’s weight
measurements.

                                        - 12 -
