                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
      ___________

      No. 02-2694
      ___________

United States of America,                 *
                                          *
            Plaintiff - Appellee,         *
                                          *
      v.                                  *
                                          *
Pamela Kuenstler,                         *
                                          *
           Defendant - Appellant.         *
      ___________
                                              Appeals from the United States
      No. 02-2748                             District Court for the Western
      ___________                             District of Missouri.

United States of America,             *
                                      *
           Plaintiff - Appellee,      *
                                      *
     v.                               *
                                      *
Gregory A. Hill,                      *
                                      *
           Defendant - Appellant.     *
                                 ___________

                             Submitted: January 15, 2003

                                    Filed: April 15, 2003
                                     ___________
Before WOLLMAN and MURPHY Circuit Judges, and AUTREY,1 District Judge.
                        ___________

MURPHY, Circuit Judge.

      Gregory Hill and Pamela Kuenstler were each convicted of two charges related
to manufacturing methamphetamine in an amount of fifty grams or more: one count
of conspiracy to manufacture a mixture and substance of methamphetamine and
another charging attempt to manufacture the same, in violation of 21 U.S.C. §§
841(a)(1), 841(b)(1)(B), and 846. Hill was also convicted of possession of
methamphetamine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(C). The district court sentenced Hill to 360 months and Kuenstler to 63
months. Hill and Kuenstler appeal, and we affirm.

                                         I.

       In May 2001 authorities uncovered a methamphetamine lab in the attic of a
house in which Hill and Kuenstler were staying. The lab contained equipment and
precursor chemicals used to manufacture methamphetamine, as well as substances
which contained methamphetamine (0.53 grams of solid material and 91.9 grams of
liquid). Hill and Kuenstler were tied to manufacturing efforts at the lab by the
testimony of Brenda Brown, the lessee of the house and a coconspirator. Brown was
attempting to learn how to produce methamphetamine, and she testified that there had
been several methamphetamine "cooks" at the lab. Hill and a friend of his had
purchased the initial equipment to set up the lab and had supplied many of the
precursor chemicals used in the cooks, such as pseudoephedrine, acetone, and
muriatic acid. Hill had also helped with the manufacturing process by shaking
solutions to break down ephedrine. Kuenstler had washed lab equipment in a manner

      1
       The Honorable Henry E. Autrey, United States District Judge for the Eastern
District of Missouri, sitting by designation.

                                         2
designed to remove contaminants and had purchased tincture of iodine, another
precursor chemical. Hill and Kuenstler had also helped Brown move the lab from a
downstairs bedroom to the attic, and they each received a share of the
methamphetamine produced.

      Shortly before the lab was discovered, officers with an arrest warrant for Hill
had arrested him in the vicinity of the house. On the front seat of his truck they found
a small tin box which held a number of small plastic baggies, five of which contained
a white powder substance later determined to be methamphetamine, and a small pink
straw with powder residue in it. Elsewhere in the truck were a hypodermic needle,
several other plastic baggies, and a sheet of paper with notations which appeared to
be coded records of drug transactions.

      A grand jury indicted Hill, Kuenstler, and Brown for conspiracy to manufacture
and for attempt to manufacture a mixture and substance of methamphetamine in an
amount of fifty grams or more. The indictment also charged Hill individually with
possession of methamphetamine with intent to distribute; this count was based on the
evidence found in his truck. Brown reached a plea agreement with the government,
and Hill and Kuenstler proceeded to trial.

       On the eve of trial Hill and Kuenstler moved to suppress evidence about the lab
and its contents on the ground that it had been discovered by an unconstitutional
search. The district court held an evidentiary hearing just before trial and denied the
motion. In its oral ruling the district court found that although officers had entered
Brown's residence without asking for consent, the defendants had no reasonable
expectation of privacy in the attic because it was being used solely for commercial
purposes.

       The district court submitted the conspiracy and attempt charges to the jury with
instructions that the defendants could not be convicted of either offense unless the

                                           3
jurors found it "involved the manufacture of fifty grams or more of a mixture and
substance of methamphetamine." Defendants objected and argued that the indictment
and the statute required proof that the object of the conspiracy or attempt was to
produce fifty or more grams of methamphetamine. The objection was overruled, and
the government argued in closing that the quantity charged in the indictment had been
established by evidence that the liquid substances in the lab weighed over ninety
grams. Hill and Kuenstler were convicted on all counts. Hill had prior convictions,
including one for selling methamphetamine, and was sentenced as a career offender
to 360 months; Kuenstler had no prior record and was sentenced to 63 months. They
appeal on several grounds.

                                           II.

       Appellants claim that the district court erred by not suppressing the evidence
found in the attic and by not requiring proof that the object of the conspiracy and
attempt offenses was the production of fifty grams or more. They also contend that
the liquid solutions in the lab were not mixtures or substances of methamphetamine
within the meaning of the statute because they were unusable and unmarketable.
Each raises individual claims as well. We address the arguments in turn.

        Appellants claim first that their Fourth Amendment rights were violated by
introduction of evidence connected with the methamphetamine lab because it resulted
from an illegal search. The lab had been discovered after law enforcement officers,
who had a felony arrest warrant for Hill, learned that he was staying with Brown.
While waiting for a search warrant to be obtained, they proceeded to the vicinity of
Brown's house in the hope of apprehending Hill if they saw him outside. When Hill
came out of the house, they attempted to arrest him as he neared his pickup truck. He
tried to get away, but two officers jumped into the back of the truck and it stalled after
traveling a short distance. As Hill surrendered, a woman ran out of the house toward
the officers, screaming "If you are going to kill him, you are going to have to kill me,

                                            4
too." She too was placed under arrest, and officers observed that another woman was
standing in the doorway of the house. They feared that they might be attacked by
someone still in the house, and two of them went up to the door and asked whether
anyone else was inside. Brown was the woman at the door, and she indicated that her
friend Pamela Kuenstler was also there. The officers then went into the house and
looked around to ensure that no one else presented a threat. One observed that a set
of stairs had been lowered from the attic, and he went up and discovered the lab. An
officer told Brown that they had seen the lab in the attic and would get a warrant if
she did not want to consent to a search. Brown signed a consent form, and the
contents of the lab were seized during the subsequent search.

       After its evidentiary hearing, the district court found that Brown had not
consented to the original search and concluded that the search had not been justified
by exigent circumstances. It denied the motion to suppress evidence of the
methamphetamine lab, however, because it concluded that neither Hill nor Kuenstler
had a legitimate expectation of privacy in the attic and therefore no right to challenge
the constitutionality of the searches. Hill and Kuenstler argue on their appeal that
they were overnight guests who had a legitimate expectation of privacy in the entire
house. The government responds that appellants forfeited any legitimate expectation
of privacy in the house by using it for a commercial purpose, that Brown had
consented to both searches, and that the first search was justified by exigent
circumstances.

       The Fourth Amendment protects "against unreasonable searches and seizures,"
but its protections are personal and cannot be asserted by persons lacking a
"legitimate expectation of privacy" in the place searched. Rakas v. Illinois, 439 U.S.
128, 143 (1978). Such protection was extended to an overnight guest in Minnesota
v. Olson because the visitor had a legitimate expectation of privacy in the home in
which he was staying and thus the right to invoke the Fourth Amendment. 495 U.S.
91, 96–100 (1990). At the time of the search in this case both Hill and Kuenstler had

                                           5
been staying with Brown, but the government argues that the overnight guest rule
does not apply to them because they had been engaging in commercial activity in the
house, citing Minnesota v. Carter, 525 U.S. 83, 90–91 (1998).

       In Carter the Court distinguished an "overnight social guest" from someone
"merely present with the consent of the householder" with no enforceable Fourth
Amendment right in the premises. Id. at 90. Carter and another visitor who were
packaging cocaine at an apartment were "essentially present for a business
transaction." Id. They had no prior relationship with the lessee and were there only
"to do business" with no showing of an "acceptance into the household." Id. The
Court explained that an individual's expectation of privacy is less in property used
"for commercial purposes," id., and the "purely commercial nature" of Carter's visit
meant he did not have a legitimate expectation of privacy. Id. at 91. The search of
the apartment therefore could not violate the Fourth Amendment in respect to the
visitors. Id.

       The Court's analysis in Carter demonstrates that whether an individual has a
legitimate expectation of privacy depends upon an examination of all the facts related
to the claimant's presence at the site of a search. See also United States v.
Gamez–Orduno, 235 F.3d 453, 459–61 (9th Cir. 2000). Here there are facts which
each side might draw on in their favor. Appellants had been staying with Brown for
an extended period of time: Kuenstler for several months, Hill for several weeks.
There was evidence that Kuenstler was a friend of Brown's2 and that Hill was
contributing to household costs while looking for another place to stay. A finder of
fact might conclude that they were social guests accepted into the household. On the
other hand, evidence connected Hill and Kuenstler to the methamphetamine lab on


      2
       Brown testified that she had identified Kuenstler as her friend when officers
came to the door (they claimed that she said nothing and only pointed to Kuenstler's
presence).

                                          6
the premises. There was evidence that Hill helped set it up by obtaining equipment,
that both Hill and Kuenstler procured precursors and helped move the lab to the attic,
and that both did work in the lab and received part of the methamphetamine
produced. A finder of fact might conclude that distributable amounts of
methamphetamine were produced in the lab and that Hill and Kuenstler were part of
a commercial undertaking located in the house. Probably because the motion to
suppress was filed so late, the district court did not develop the record in light of
Carter or make findings of fact before it concluded that the defendants lacked a
reasonable expectation of privacy. We are therefore not well positioned to rule on
whether or not appellants had a reasonable expectation of privacy at Brown's house.

       We turn instead to the validity of the search. Warrantless searches are
presumptively unreasonable absent some exception to the warrant requirement. See
United States v. Duchi, 906 F.2d 1278, 1282 (8th Cir. 1990). Officers discovered the
lab in the attic after entering the house without a warrant. It is undisputed on appeal
that they had obtained a valid consent from Brown before conducting a search of the
lab, but appellants argue that the initial search of the house was illegal. The
government responds that that search was justified because there were exigent
circumstances facing the officers.3

      Exigent circumstances exist where law enforcement officers have a "legitimate
concern for the safety of themselves or others." United States v. Vance, 53 F.3d 220,
222 (8th Cir. 1995) (internal quotation marks omitted). The analysis of whether this
exception to the warrant requirement has been made out is an objective one "focusing
on what a reasonable, experienced police officer would believe." In re Sealed Case
96-3167, 153 F.3d 759, 766 (D.C. Cir. 1998) (internal quotation marks omitted); see
also United States v. Clement, 854 F.2d 1116, 1119 (8th Cir. 1988). We review the


      3
       The government contends in addition that Brown had also consented to the
officers entering the house and looking around.

                                          7
district court's findings of historical fact for clear error, but the ultimate determination
of whether the facts as found constitute exigent circumstances is reviewed de novo.
See Ornelas v. United States, 517 U.S. 690, 696 (1996); United States v. Cooper, 168
F.3d 336, 338–39 (8th Cir. 1999).

        Applying the historical facts as found by the district court, we conclude that a
reasonable officer would have been legitimately concerned for his safety and that of
the other officers on the scene that day. The situation escalated quickly once the
officers attempted to arrest Hill, and they did not approach Brown's house until after
a number of worrisome events had occurred. First Hill resisted arrest, then a woman
ran at them from out of the house screaming threats, and they next became aware that
another person was watching them from inside the doorway of the house. They were
also aware that there might be a drug lab inside the house.4 A reasonable officer
would have concluded in these circumstances that the officers faced a dangerous
situation and that there could be other persons in the house who threatened their
safety. See United States v. Ball, 90 F.3d 260, 263 (8th Cir. 1996); Vance, 53 F.3d
at 222 (exigent circumstances existed after suspect exited house and surrendered, but
another person was seen watching from door and there was reason to believe weapons
were in house); see also United States v. Howard, 106 F.3d 70, 75 (5th Cir. 1997)
(reasonable officer may fear presence of firearms in narcotics investigation because
guns are tool of drug trade). Although, as the district court pointed out, the officers
may have also been motivated by a desire to locate the lab or other suspects, an
ulterior motive does not render a search illegal in a situation where officers have
objectively reasonable safety concerns. Cf. Horton v. California, 496 U.S. 128, 138
(1990) ("The fact that an officer is interested in an item of evidence and fully expects
to find it in the course of a search should not invalidate its seizure if the search is


       4
       A member of the joint methamphetamine task force testified at the suppression
hearing that the officers knew there was a "very high likelihood" that there was a
methamphetamine lab in the house.

                                             8
confined in an area and duration by the terms of a … valid exception to the warrant
requirement.").

       After examining the record, we conclude that the initial entry and search were
justified by exigent circumstances and did not violate the Fourth Amendment. The
district court therefore did not err by denying the motion to suppress. See Rupp v.
Omaha Indian Tribe, 45 F.3d 1241, 1244 (8th Cir. 1995) (court of appeals may affirm
on any ground supported by record).

       Appellants argue that they should not have been held accountable for fifty or
more grams of methamphetamine. They point to language in 21 U.S.C. §
841(b)(1)(B), which sets minimum and maximum penalties for any "violation …
involving— … 50 grams or more of … methamphetamine." (emphasis added).
Appellants argue that a conspiracy can only involve fifty grams or more if there is an
agreement to make that amount (and that an attempt can only involve fifty grams or
more if the defendants actually try to make that amount). They contend that the jury
instructions should have required such findings. The government responds that their
argument is contrary to the plain language of the statute and that the jury was
correctly instructed on the elements of conspiracy and attempt.

       The district court instructed the jury that, in order to convict the defendants of
conspiracy or attempt, it must find that "the violation of the law involved the
manufacture of 50 grams or more of a mixture and substance of methamphetamine."
The instructions followed the plain language of the statute, see United States v. S.A.,
129 F.3d 995, 998 (8th Cir. 1997) (unambiguous plain language controls absent
legislative intent to the contrary), and they are in accord with the common practice
of proving drug quantity by evidence of actual quantities seized. See, e.g., United
States v. Valensia, 299 F.3d 1068, 1076 (9th Cir. 2002). Appellants' attempt to read
additional requirements into the statutory offenses is not persuasive.



                                           9
       Appellants also claim that the jury instructions modified an essential element
of the offense charged and thus constructively amended the indictment. See United
States v. Johnson, 934 F.2d 936, 941 (8th Cir. 1991). The indictment alleged the
essential elements for conspiracy and attempt, but it also alleged that the object of
these offenses was the production of fifty or more grams of methamphetamine. This
factual allegation did not add another element to the crimes charged, however.
"When an indictment includes all of the essential elements of an offense, but also
treats other, superfluous matters, the superfluous allegations may be disregarded."
United States v. Wells, 127 F.3d 739, 743 (8th Cir. 1997) (allegation in indictment
that misstatements were material was not required in jury instructions where
materiality was not an element of crime). There was no constructive amendment of
the indictment here.

        Appellants also contend that the § 841(b)(1)(B) phrase "mixture or substance
containing a detectable amount of methamphetamine" only applies to usable or
marketable mixtures or substances. They point out that the government's expert
testified that only 0.53 grams of the mixtures found in the lab were usable
methamphetamine and that 91.9 grams were unusable toxic liquid solutions of a type
that could represent waste product. Some courts have concluded that only usable or
marketable mixtures were intended by Congress to satisfy the statutory amount. See
United States v. Richards, 87 F.3d 1152, 1154–55 (10th Cir. 1996) (noting conflicting
lines of cases and holding that "mixture or substance" must be given its plain
meaning). In developing their position on drug mixtures, these courts have drawn on
language used by the Supreme Court in Chapman v. United States, 500 U.S. 453,
461–62 (1991). Chapman involved a question of how drug quantity should be
determined when LSD is combined with blotter paper. The Supreme Court held that
the combination is a "mixture" under § 841(b), relying both on the plain meaning of
the phrase "mixture or substance" and on congressional intent. It characterized the
legislative intent as a "market-oriented approach to punishing drug trafficking, under



                                         10
which the total quantity of what is distributed … is used to determine the length of
the sentence." Id.

       Both Chapman rationales support the conclusion that the solutions in this case
fall within the scope of §841(b)(1)(B). First, undisputed expert testimony established
that the liquid solutions here were mixtures containing methamphetamine under the
plain meaning of that term. Second, a "market-oriented" analysis supports the finding
that the liquid solutions in the lab were mixtures or substances containing
methamphetamine. The market for this type of methamphetamine is based on its
manufacture in labs like that of the conspirators, and that process involves creation
of liquid solutions like those seized here, a process that results in a product for
distribution. See United States v. Palacios-Molina, 7 F.3d 49, 53 (5th Cir. 1993);
United States v. Robins, 967 F.2d 1387, 1390 (9th Cir. 1992). The evidence
introduced by the government was sufficient to establish the quantity alleged in the
indictment for the attempt and conspiracy offenses.

       Hill raises two individual claims on appeal, the first of which is that the district
court erred by allowing opinion testimony from four government witnesses who had
not been disclosed as experts. These witnesses testified that certain evidence was
consistent with the normal practice of drug dealers, and Hill asserts that this
testimony should only have been permitted from designated experts. To establish a
right to reversal, Hill would have to show both that a discovery rule was violated and
that the violation was prejudicial. See United States v. Longie, 984 F.2d 955, 958
(8th Cir. 1993). Hill has not shown prejudice. Although he says he had insufficient
time to prepare a response to the testimony, he neither requested a continuance nor
stated how he would have rebutted the evidence if the witnesses had been disclosed
as experts. Moreover, there is no question that the witnesses were qualified to give
expert opinions—the record reflects that each had extensive background in law
enforcement, including experience investigating the methamphetamine business in
Kansas City. Hill has failed to show he is entitled to a reversal. See United States v.

                                            11
Johnson, 228 F.3d 920, 925–26 (8th Cir. 2000); United States v. Ortega, 150 F.3d
937, 943–44 (8th Cir. 1998).

        Hill also appeals the denial of his motion for judgment of acquittal on the
charge of possession with intent to distribute, arguing that the 0.47 grams of
methamphetamine found in his truck was not a sufficient amount to establish intent
to distribute. There was adequate circumstantial evidence to support the jury's
conclusion, however. The methamphetamine was divided into five individual
packages, found with other packaging material and a sheet of drug notes, and Brown
testified that Hill regularly sold methamphetamine to a number of customers. See
United States v. Barrow, 287 F.3d 733, 736–37 (8th Cir. 2002). (presence of
packaging material can support inference of intent to distribute); United States v.
Temple, 890 F.2d 1043, 1045 (8th Cir. 1989). The district court properly denied
Hill's motion for acquittal on Count III.

       Kuenstler also raises two individual claims on appeal. First, she argues that the
district court did not adequately instruct the jury on Brown's credibility in light of her
cooperation agreement. The court's instruction informed the jury that Brown had
reached an agreement with the government and that the jury was responsible for
determining her credibility. The district court did not abuse its discretion by refusing
to give a more specific instruction. See United States v. Kouba, 822 F.2d 768, 771
(8th Cir. 1987). Kuenstler also appeals from the denial of her motion to sever. She
says she was prejudiced by a joint trial because the jury was exposed to evidence
about Hill's criminal record, his greater involvement in the charged offenses, his
participation in a separate scheme to manufacture methamphetamine, and a threat he
made to Brown about her cooperation. The general rule is that coconspirators should
be tried together, however, see United States v. Robinson, 774 F.2d 261, 265 (8th Cir.
1985), and a severance should not be granted if "less drastic measures, such as
limiting instructions … will suffice to cure any risk of prejudice." Zafiro v. United
States, 506 U.S. 534, 539 (1993). Kuenstler has not shown that the court's limiting

                                           12
instructions were insufficient, and we conclude that the district court did not abuse
its discretion by denying her motion to sever. See United States v. Robinson, 774
F.2d 261, 267 (8th Cir. 1985).

                                         III.

       In sum, we conclude that exigent circumstances justified the entry into Brown's
house and that the Fourth Amendment was not violated by the seizure of evidence
found there; that appellants' arguments based on the methamphetamine statute, the
indictment, and the jury instructions are without merit; and that the district court
neither abused its discretion in its evidentiary rulings or jury instructions nor erred
in ruling on motions for acquittal or severance. The judgments are therefore affirmed.

      A true copy.

             Attest:

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




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