                  UNITED STATES COURT OF APPEALS

                      FOR THE FIFTH CIRCUIT



                           No. 94-10084



                    UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,


                              VERSUS


                      JAMES CLIFTON GIBSON,

                                                Defendant-Appellant.




                             94-10649



                    UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,

                              VERSUS

                       JAMES CLIFTON GIBON,

                                                Defendant-Appellant.


          Appeals from the United States District Court
                for the Northern District of Texas




                          (June 5, 1995)


Before REYNALDO G. GARZA, HIGGINBOTHAM, and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:

       Defendant-Appellant James Clifton Gibson ("Gibson") appeals

his criminal conviction and the denial of his post-trial motions.

We affirm.

                       PROCEEDINGS IN THE COURT BELOW

       On   November    17,      1992,   Gibson    and       Melvin    Boyd    Hazelton

("Hazelton") were named in a four count indictment. The defendants

were jointly charged in three counts: Count 1, conspiracy to

manufacture     and         to   possess    with      intent          to     distribute

methamphetamine, in violation of 21 U.S.C. § 841 (a)(1); Count 2,

possession of methylamine, a listed chemical, in violation of 21

U.S.C. § 841(d)(2); and Count 4, maintaining a place for the

purpose of manufacturing and distributing a controlled substance,

in violation of 21 U.S.C. § 856(a)(1).               Hazelton was also charged

with   possession      of    phenylacetic    acid,       a    listed       chemical,   in

violation of 21 U.S.C. § 841(d)(2).

       On March 15, 1993, Hazelton pleaded guilty to Count 4 and,

pursuant to a plea agreement, testified as a government witness at

Gibson's trial.     Hazelton was subsequently sentenced to 120 months

imprisonment.     A jury found Gibson guilty on all counts on March

26, 1993.

       Gibson retained new counsel approximately one week after he

was convicted, and his trial counsel later withdrew.                       Gibson filed

a motion to suppress evidence, for new trial, to dismiss the

indictment, and for release pending appeal on July 28, 1993.                           The

motion for new trial was based on his claim that he received

ineffective assistance of counsel at trial because his trial
counsel failed to file a motion to suppress evidence, conducted

inadequate pretrial investigation, and failed to call certain

witnesses identified by the new lawyer. The trial court denied the

motion, finding that it was not based on newly discovered evidence

and was outside the seven day limit for filing motions for new

trial imposed by FED. R. CRIM. P. 33. The district court also denied

Gibson's motion to suppress evidence, finding that he had waived

his right to object to its admission by failing to timely file for

suppression and that he had not shown cause sufficient to merit

relief from that waiver under FED. R. CRIM. P. 12(f).            The district

court likewise denied the motions for dismissal of the indictment

and   for   release,     although    Gibson    was   granted    release   after

sentencing, pending appeal.          Gibson moved for reconsideration of

those orders, which motion was denied on December 3, 1993, with a

finding     that   no   grounds   existed     for    granting   new    trial   or

acquittal.

       The district court sentenced Gibson on January 18, 1994 to

135 months imprisonment and a 5 year term of supervised release.

Gibson appealed.        On April 15, 1994, Gibson filed a motion for new

trial based on newly discovered evidence, and this Court stayed the

appeal.     The district court denied the motion, finding that the

same arguments had been advanced in earlier post-trial motions and

were without merit.         Gibson filed a notice of appeal from that

order as well, and this Court consolidated the two appeals.

                                     FACTS

      Gibson   is   an    arguably   bright,    professionally        successful


                                       3
mechanical engineer in his early thirties. He holds patents on and

receives royalties from two tow truck designs.                    He is married and

has two young children and testified that he considers himself a

strong Christian.

     Hazelton    is   a    forty   year       old   high   school    graduate   with

mechanical    aptitude      and    a   history       of    drug    use   and   failed

relationships.    The two met in the late eighties when Gibson had

Hazelton overhaul the engine in his car. Gibson enjoyed Hazelton's

company and liked to "pick his brain" about technical design

problems.    Over time, the two became close friends, vacationing

together, and eventually Hazelton moved in with Gibson's family.

     Gibson and Hazelton developed a plan to go into business

together.    Gibson was going to do design work and, with Hazelton's

help, manufacture his own prototypes.               In the Spring of 1992, they

jointly purchased a 132.5 acre piece of land just outside of

Loving, Texas, which included a residence and several outbuildings.

Both contributed to the down payment on the real estate, but the

lien note and title to the land were taken in the Gibsons' names

because of Hazelton's past credit problems.                  Hazelton moved onto

the ranch first, and Gibson and his family moved onto the ranch a

short while later.        From April through August, Gibson and Hazelton

worked to convert the barn into a workshop.                   Neither Gibson nor

Hazelton had jobs off the ranch, and devoted much of their time to

the renovation.

     When law enforcement officers executed a search warrant on the

ranch, they found glassware adequate to set up a methamphetamine


                                          4
lab, some of which contained methamphetamine residue, in boxes in

the barn.    Authorities found a fingerprint identified as Gibson's

on one of the pieces of glassware.          They also found a jar in the

workshop refrigerator containing a small amount of methamphetamine.

       The officers found a pair of jeans that smelled like a

methamphetamine cook, approximately $40,000 cash, several guns, a

notebook with chemical formulas, and a receipt for a mini-warehouse

rental among Hazelton's belongings in the house.          They also found

a telephone scrambler, several loaded guns, and more cash among

Gibson's belongings.    One officer testified that Gibson made an

oral confession during the search, admitting that he was aware of

the chemicals on the property, but explaining that Hazelton had

offered him money to store the chemicals temporarily.

      A subsequent search of the mini-warehouse revealed a large

quantity of phenylacetic acid.          Hazelton had signed the mini-

warehouse lease and listed Gibson's name on the lease document.

Gibson had a key to the mini-warehouse which he told his wife to

turn over to authorities during his incarceration after the search.

      Hazelton and Gibson both testified at trial, giving two very

different versions of the facts.        Hazelton testified that he had

cooked methamphetamine at the ranch three times during the Spring/

Summer of 1992.   He testified to a several-year-long collaboration

between himself and Gibson in the manufacture, distribution, and

use   of   methamphetamine,   and   fully    implicated   Gibson   in   the

methamphetamine cooks on the ranch.

      Gibson testified that he was not aware of the presence of any


                                    5
controlled substances on the property, that he did not conspire or

intend to manufacture methamphetamine, and that he was ignorant of

Hazelton's extensive drug involvement.           He explained that he kept

large sums of cash on hand because a potential problem with the

Internal Revenue Service precluded depositing the funds in a bank

account.     He explained that his fingerprint was on the piece of

glassware in the workshop because he had been nosing around in

Hazelton's boxes one time, but he maintained that he did not know

what the glassware was for.      He denied that he made a statement to

an officer at the time of the search admitting knowledge of the

presence of chemicals on the property.           Finally, he attributed to

Hazelton the motive of getting a better deal from the government on

sentencing by lying about their partnership.

                            SUPPRESSION ISSUES

      Gibson claims that his conviction should be reversed because

the   physical    evidence      used       against   him    at     trial    was

unconstitutionally    seized.     He       specifically    alleges   that   the

judge's signature on the search warrant was forged and that the

underlying      affidavit     included        deliberate      or     reckless

misrepresentations.

a. The judge's signature on the warrant.

       Appellant submitted a post-trial motion alleging that State

District Judge Jim R. Wright's signature on the search warrant was

a forgery.    He submitted affidavits from two handwriting experts.

One reached the "tentative opinion" that the signature on the

warrant was written by a person other than Judge Wright.             The other


                                       6
expert submitted a report that the signature on the warrant was

"probably" not written by Judge Wright.      Judge Wright submitted an

affidavit stating that he did sign the search warrant.            Finding

himself "unconvinced that the judge's signature on the search

warrant is a forgery," the district court denied the motion.

Having reviewed this factual determination for clear error, United

States v. Carrillo-Morales, 27 F.3d 1054, 1061 (5th Cir. 1994),

cert. denied, 115 S.Ct. 1163 (1995), we find no merit in this

ground of error.

b. Adequacy of the affidavit of probable cause.

     The affidavit for the search warrant was signed by deputy

sheriff Houston Johnson ("Johnson").       He stated under oath that he

and three other officers were on a hill across the road from the

ranch at 9:34 p.m. on August 1, 1992 conducting surveillance when

each of them "smelled an odor associated with the manufacture of

amphetamine,   methamphetamine   or    phenylacetone   coming   from   the

direction of the [Gibson ranch]."       The affidavit stated that all

four officers had training in the detection of clandestine labs and

were familiar with odors associated with such labs.

     Gibson filed a post-trial motion contending that Johnson's

allegations that the officers smelled a clandestine lab were

deliberately false or were made with reckless disregard of the

truth.   In    determining   whether   a   search   warrant   establishes

probable cause, a court must disregard any intentional or reckless

misrepresentations made by the affiant in the affidavit.           United

States v. Cherry, 50 F.3d 338, 341 (5th Cir. 1995).               Without


                                   7
question,    there   was   a   substantial   basis   on     the   face   of   the

affidavit for Judge Wright's determination that probable cause

existed for the issuance of a search warrant, Illinois v. Gates,

462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332-33, 76 L.Ed.2d 527

(1983); however, the affidavit would not have been adequate without

the allegations of the odors.         See United States v. McKeever, 906

F.2d 129, 132 (5th Cir. 1990), cert. denied, 498 U.S. 1070 (1991)

("Distinctive odors, detected by those qualified to know them, may

alone establish probable cause.")

     Gibson relies on trial testimony and information garnered

after trial to establish that the officers could not have smelled

odors associated with a clandestine drug lab at the time and place

alleged in the search warrant affidavit.          The evidence established

that methamphetamine had been cooked on the property prior to the

night in question, but that no drugs were being cooked at the time

stated in the affidavit.        Evidence also established that officers

could detect the illicit odor when they executed the search warrant

in the barn and at least in Hazelton's bedroom during the search of

the residence.       Further, officers testified that waste products

from previous cooks, disposed of on the property, could have given

off the odor, although Hazelton testified that he disposed of some

of the waste in sealed containers.

     After    considering      the   arguments   advanced    by   Gibson,     the

district court found that grounds for acquittal or new trial did

not exist.    The court went on to find that a recorded conversation




                                       8
among law officers who were conducting the search1, presented post-

trial by Gibson in support of his argument that the search was

unconstitutional, was "equivocal at best."     We agree.

     Gibson has attempted to establish that because of the distance

between the surveillance and the property, because there was no

contemporaneous methamphetamine cook, and because other people who

were on or near the property testified that they had not noticed

the odor, Johnson must have lied about smelling the odor.     Gibson

also points to discrepancies between the time the affidavit states

that Johnson detected the odor and the time as reported by another

officer who was present (a difference of less than an hour) as

support for the proposition that Johnson's affidavit contained

misrepresentations.

     This issue presents a compound question: Did the district

court resolve the fact question presented -- that is, did the

district court determine whether Johnson's affidavit contained

misrepresentations?      Next, is that fact determination clearly


     1
       The identity (or even the number) of speakers on the tape
are not identified in the record:

             Were they gone?
             (inaudible whispering)
             Well, was it set up?
             Ha, ha,...shit.
             I don't know if they found any dope already cooked up or
     what.
             They hadn't even started cooking yet.

     * * *

             I'm sure there's gonna be some problems...
             That's gonna create a mess, man. Generate some paper.


                                   9
erroneous?

     The district court's written order finding that the evidence

was equivocal, and that no grounds existed for a grant of new trial

or acquittal adequately resolved the factual issues presented.

Gibson does not dispute that there is evidence in the record that

supports the statements made in the affidavit.                 His argument

amounts to an invitation that we find, as a matter of law, that it

was physically impossible for the officers to smell the odor of a

clandestine methamphetamine lab on the hill across from the ranch

on the night of the surveillance.           Fifth Circuit precedent would

allow us to intervene, and declare testimony incredible as a matter

of law, "when testimony is so unbelievable on its face that it

defies physical laws."       United States v. Casteneda, 951 F.2d 44, 48

(5th Cir. 1992), quoting United States v. Lindell, 881 F.2d 1313,

1322 (5th Cir. 1989), cert. denied, 110 S.Ct. 2621 (1990).            This is

a close question that we may have decided differently, had it been

presented to us in the first instance.           The evidence raises serious

credibility questions, some of which even approach scientific

impossibility.       However, neither the scientific and anecdotal

evidence in this record, nor our ability to take judicial notice of

the laws of nature lead us to the conclusion that the district

court's   decision     is   clearly    erroneous.       The   evidence     that

methamphetamine      had    been   cooked   on    the   property,   that    its

distinctive odor could have lingered in the vicinity of the cooks,

that waste water may have been disposed of outside the buildings,

and the direction of the wind the night of the surveillance all


                                      10
support Johnson's statement in the affidavit that the surveillance

officers smelled the odor of a clandestine lab on a hilltop some

distance off the property.   We must therefore affirm the district

court's decision.

     We note further that Gibson does not contend that he was

entitled to a hearing or other evidentiary procedure more extensive

that he was provided prior to the court's resolution of the

disputed facts.

     Gibson's arguments that "the district court's double jeopardy

fears are baseless" and "the district court had ample jurisdiction

to grant a new trial" are not instructive to us in our task of

determining whether the district court reversibly erred in this

case.   Although the record reflects that the district court had

doubts about his power to remedy Fourth Amendment violations after

a verdict was returned, we are convinced that the Gibson did not

establish the necessary facts to support his constitutional claims.

We therefore do not reach the question of whether the prohibition

against double jeopardy or jurisdictional limitations would have

precluded Gibson's motion for suppression of evidence raised for

the first time post-trial.

                  INEFFECTIVE ASSISTANCE OF COUNSEL

     Gibson contends that his conviction must be reversed because

he did not receive effective assistance of counsel at trial.

Specifically, he alleges his trial counsel conducted no pretrial

investigation, failed to file a motion to suppress the evidence,

and failed to present a complete defense.   As a general rule, Sixth


                                 11
Amendment claims of ineffective assistance of counsel cannot be

litigated on direct appeal, unless they were adequately raised in

the district court.     United States v. Wallace, 32 F.3d 921, 930

(5th Cir. 1994).       Because Gibson's post-trial motions in the

district court raised allegations of trial counsel's deficiencies,

this case is one of the rare instances where ineffective assistance

of counsel claims are ripe for review on direct appeal.

     To    establish   ineffective    assistance   of   counsel,   it   is

incumbent upon Gibson to show that counsel's representations fell

below an objective standard of reasonableness and, that, but for

counsel's unprofessional errors, the result of the proceeding would

have been different.    Strickland v. Washington, 466 U.S. 668, 694,

104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984).            Our scrutiny of

counsel's performance must be highly deferential.         Id., at 689.

     Gibson's contention that trial counsel's failure to file a

motion to suppress evidence based on a faulty search warrant

constitutes ineffective assistance of counsel is without merit.

Counsel is not required by the Sixth Amendment to file meritless

motions.

     His other complaints are equally without basis.         The record

does not support the allegations that trial counsel failed to

conduct a reasonable investigation or put on a complete defense.

Gibson's trial counsel conducted an inspection of the ranch two

days after the execution of the warrant.      He filed five pre-trial

motions going to discovery and other matters.           He reviewed and

inspected all physical evidence prior to trial, and subpoenaed six


                                     12
defense witnesses. At trial, he aggressively and thoroughly cross-

examined   the   government's    witnesses,   and   called   five    defense

witnesses who attacked the credibility of the government's case,

and developed a coherent defensive theory of the case.

     Trial counsel did a professional job and certainly did not

fall below the objective reasonableness required by the Sixth

Amendment.

                         RULE 404(b) EVIDENCE

a. Admissibility

     The   district   court     admitted   testimony   of    Kevin    Capers

("Capers"), who testified that Gibson had sold him "speed" several

times during 1987-1988.       There was no allegation that Capers was

involved in any of the charged conduct, and his involvement with

Gibson ended in approximately September 1988.

     Evidence of other similar bad acts is admissible only if (1)

it is relevant to an issue other than the defendant's character to

show, inter alia, opportunity, intent, knowledge, or plan, and (2)

the probative value of the evidence is not substantially outweighed

by the danger of unfair prejudice.         FED. R. EVID. 403, 404; United

States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978)(en banc),

cert. denied 440 U.S. 920 (1979).             A trial court should be

particularly wary where the prior bad acts alleged did not result

in a criminal conviction. Id. at 914.       However, the decision by the

district court to admit evidence of an extrinsic offense under FED.

R. EVID., 404(b) will not be disturbed on appeal absent a clear

showing of abuse of discretion.       United States v. Bruno, 809 F.2d


                                    13
1097, 1106 (5th Cir.) cert. denied, 481 U.S. 1057 (1987).

       The trial court admitted Capers's testimony on rebuttal after

Gibson testified.          Gibson portrayed himself to be completely

innocent of involvement or even knowledge of the production and

distribution of methamphetamine that Hazelton described beginning

in 1988, and continuing through the August 2, 1992 search of the

ranch.    He testified that Hazelton's testimony was a lie and that

his fingerprint was on the boxed glassware only because he was

"nosing" through "glass jars." In this case, the rebuttal evidence

that     merely    completed      the   picture    as    to   appellant's   true

involvement in and knowledge of the drug world, thereby correcting

a distorted view of appellant's testimony, was relevant.                       See

United States v. Blake, 941 F.2d 334, 339 (5th Cir. 1991), cert.

denied, 113 S.Ct. 596 (1992).             Simply stated, Gibson's testimony

opened the door and the Government walked right in.

       Gibson     next   argues    that   even    if    Capers's   testimony   is

relevant, the probative value is substantially outweighed by unfair

prejudice because the jury might have convicted Gibson not for the

offense charged but for the extrinsic offense, citing United States

v. Ridlehuber, 11 F.3d 516 (5th Cir. 1993).              Ridlehuber was charged

with possession of an unregistered, short-barrelled shotgun found

by officers on an open shelf in the kitchen of his residence.

Officers also located in the residence some items that might have

been used to manufacture illicit drugs, but that also had a

legitimate purpose related to Ridlehuber's business.                 This Court

remanded because the evidence of the charged offense, possession of


                                          14
the shotgun, was weak and because there was insufficient evidence

that Ridlehuber had committed the extrinsic act of operating a

clandestine drug lab.

     Ridlehuber is inapposite to the case before us.               Capers

testified that Gibson made multiple deliveries of methamphetamine

to him.   Secondly, Hazelton's testimony, the fingerprint, and the

evidence that Gibson made an admission to a law officer at the time

of the search make a much stronger case against Gibson on the

charged offense than the circumstantial evidence relied on in

Ridlehuber.   We therefore hold that the district court did not

abuse its discretion in admitting Capers's testimony.

b. Limiting instruction

     Although Gibson failed to request a limiting charge, we review

the court's charge, complained about for the first time on appeal,

for plain error.   United States v. Parziale, 947 F.2d 123, 129 (5th

Cir. 1991), cert. denied, 503 U.S. 946 (1992). Under this standard

of review, Gibson must show that the charge as a whole was

"deficient so as to result in a likelihood of a grave mistake of

justice."   Id.    We   must   determine   whether   the   need   for   the

instruction was so obvious that the failure to give it affected the

defendant's substantial rights.      United States v. Prati, 861 F.2d

82, 86 (5th Cir. 1988).    In Prati, this Court found that there was

no danger of a serious miscarriage of justice because the court

carefully instructed the jury as to the offenses charged, the

elements, and what the jury must find to convict the appellant,

then added, "The defendant is not on trial for any act or conduct


                                   15
or offense not alleged in the indictment."                          Id, at 87.      The court

below likewise instructed the jury on the elements necessary to

convict Gibson and used language identical to that approved in

Prati    to   limit        their    consideration          to       the   charged    offense.

Gibson's claim that there was plain error in the district court's

charge is without merit.

                            SUFFICIENCY OF THE EVIDENCE

a. Conspiracy and possession of a precursor chemical

     Gibson         contends       that   the       evidence        was    insufficient      to

establish Gibson's criminal knowledge or intent with respect to

Counts 1 and 2 of the indictment.                   This Court will reverse a guilty

verdict only if, upon viewing the evidence in the light most

favorable      to    the     government,        a    rational        trier    of    fact   must

necessarily have a reasonable doubt as to any essential element of

the crime.         United States v. Onick, 889 F.2d 1425, 1428 (5th Cir.

1989).        In    reviewing       the   evidence,            we   make     all   reasonable

inferences     and     credibility        choices         in    support      of    the   jury's

verdict. United States v. Nixon, 816 F.2d 1022, 1029 (5th Cir.

1987, cert. denied, 484 U.S. 1026 (1988).

     In order to convict Gibson of conspiracy as alleged in Count

1, the jury must have found beyond a reasonable doubt: (1) the

existence of an agreement between two or more persons, (2) Gibson's

knowledge      of      the     agreement,           and    (3)        Gibson's      voluntary

participation in the conspiracy.                     United States v. Lechuga, 888

F.2d 1472, 1476 (5th Cir. 1989).                    Count 2 requires that Gibson (1)

knowingly or intentionally possess methylamine, (2) knowing or


                                            16
having   reasonable      cause    to   believe    that    it   will    be   used   to

manufacture an illicit drug.            21 U.S.C. § 841 (d)(2).             Hazelton

testified that he and Gibson jointly participated in manufacturing

and distributing methamphetamine, at the ranch and for several

years prior to purchasing the ranch.             A conviction may rest solely

on the uncorroborated testimony of one accomplice if the testimony

is not insubstantial on its face.                 United States v. Gardea-

Carrasco, 830 F.2d 41, 44 (5th Cir. 1987).                     We find that the

evidence adequately supports the jury's verdict on Counts 1 and 2.

b. 21 U.S.C. § 856, The Crackhouse Statute.

      Gibson contends that there was no evidence that Gibson bought

his   share   of   the    ranch    "for    the   purpose       of"    manufacturing

methamphetamine in violation of 21 U.S.C. § 856(a)(1), sometimes

referred to as the "crackhouse statute."                 His theory of the case

was that he purchased the ranch to have a facility to work on his

engineering designs and prototypes and Hazelton manufactured drugs

on the property without his knowledge or complicity.

      In order to prove a violation of § 856(a)(1), the government

must demonstrate that Gibson (1) knowingly (2) opened or maintained

the ranch (3) for the purpose of manufacturing, distributing or

using methamphetamine.       United States v. Banks, 987 F.2d 463, 466

(7th Cir. 1993).      Proof that manufacturing, distributing or using

illegal drugs is one among several uses for which a facility is

maintained is sufficient to meet the purpose prong of § 856(a)(1).

United States v. Roberts, 913 F.2d 211, 220 (5th Cir. 1990), cert.

denied, 500 U.S. 955 (1991).           "It is highly unlikely that anyone


                                          17
would openly maintain a place for the purpose of manufacturing and

distributing [illicit drugs] without some sort of 'legitimate'

cover -- as a residence, a nightclub, a retail business, or a

storage barn."   Id.    Liability under the statute does not require

the drug related use to be the sole or even the primary purpose of

maintaining the property.     Id.        The record supports the jury's

conclusion   that      manufacturing,     distribution   and   use   of

methamphetamine was one of the purposes for which Gibson maintained

the ranch.   We find that there is sufficient evidence to support

Gibson's conviction under 21 U.S.C. § 856.

                              CONCLUSION

     Based on the foregoing, we AFFIRM Gibson's convictions.




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