                                                                                F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                 APR 8 1997
                                    TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                      Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                           No. 96-8052
                                                        (D.C. No. 95-CR-91-B)
 THOMAS DEAN MARCKS,                                     (District of Wyoming)

           Defendant-Appellant.


                                 ORDER AND JUDGMENT*


Before PORFILIO, LUCERO, and MURPHY, Circuit Judges.



       Defendant Thomas Marcks appeals his conviction for conspiracy to manufacture a

controlled substance, in violation of 21 U.S.C. § 846; attempted manufacture of a

controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and 846; and possession of a

listed substance with intent to manufacture a controlled substance, in violation of 21

U.S.C. § 841(d). Mr. Marcks contends the district court erred in denying his motion for a

mistrial after the admission of evidence of prior crimes and his motion to suppress

evidence seized with an overly broad search warrant. We affirm.


       *
         This order and judgment is not binding precedent, except under the doctrines of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.
                                            I.

       Mr. Marcks and codefendant Charles Northcott conspired to manufacture

methcathinone using a makeshift laboratory set up in Mr. Northcott’s girlfriend’s

apartment in Jackson, Wyoming. Shortly after the defendants’ arrival in Jackson,

however, Sergeant Alan John of the Jackson Police Department received a tip that an

individual named Tom Marcks was in the Jackson area with someone named “Chuck,”

staying at an apartment in the Cottonwood Park neighborhood that belonged to Chuck and

his girlfriend, Jo Anne Barbour. The informant reported that Mr. Marcks was driving a

silver, two-door automobile with stolen Wyoming license plates, that Mr. Marcks was

wanted by law enforcement authorities, and that Mr. Marcks and Chuck intended to

manufacture methamphetamine.

       Sergeant John and Sergeant Scott Hughes then attempted to corroborate the tip.

They discovered that a Jo Anne Barbour did live in the Cottonwood Park neighborhood at

2000 Corner Creek, and observed a silver, two-door Toyota at the residence. A vehicle

check revealed the license plates belonged to a BMW and the car was registered to

Thomas Marcks. Further investigation uncovered an outstanding warrant for Mr. Marcks

issued in Utah for a parole violation.

       Armed with this information, Sergeant John prepared an affidavit and obtained a

warrant to search Ms. Barbour’s apartment for the person of Thomas Marcks. During the

course of Mr. Marcks’ arrest, officers noticed chemicals and equipment associated with


                                           -2-
the manufacture of drugs in the apartment. Concerned with the potential danger

presented by the chemicals, Sergeant Hughes contacted a chemist from the state crime

laboratory and described his observations. The chemist confirmed Sergeant Hughes’

suspicion that officers had discovered a clandestine lab and advised that the residence be

secured and ventilated until the lab could be dismantled. Sergeant Hughes prepared

another affidavit, and a second warrant was issued authorizing seizure of the drug

paraphernalia.

       At trial, Mr. Northcott testified for the government pursuant to a plea agreement.

The following exchange occurred during his testimony:

       Q. Before we get into that, you ever use drugs with the defendant?

       [DEFENSE COUNSEL]: I object as Rule 404, Your Honor, and ask the
       jury to disregard the question.

       THE COURT: Does it come under any of the exceptions under Rule 404?
       Is this what you’re doing?

       [GOVERNMENT]: Your Honor, I think, if anything, it’s inextricably
       intertwined with this whole course of events, Your Honor, goes to the
       nature of the relationship that was between this defendant and -- or this
       witness and the defendant. I suppose I could -- you could -- I could argue
       that it goes to intent. It goes to knowledge.

       THE COURT: Well, I’ll admit it under 404(b) as to evidence of other
       crimes and wrongs that may be admissible for the purposes of proof of
       motive, opportunity, intent, preparation, plan, knowledge or indemnity [sic].




                                           -3-
       Next, despite a pretrial order in limine precluding testimony about Mr. Marcks’

prior Utah felony conviction, the government elicited the following testimony from

Sergeant Hughes:

       Q. Tell the jury, please, how it was that you first became involved in this
       case.

       A. During that week in September . . . Investigator John at the time --
       advised me of the possibility of a gentleman by the name of Mr. Marcks
       being in the Teton County area --

       [DEFENSE COUNSEL]: Object to Rule 802 and confrontation, Your
       Honor.

       THE COURT: Overruled.

       [DEFENSE COUNSEL]: Also cumulative.

       THE COURT: Overruled.

       A. -- advised me that a gentleman by the name of Mr. Marcks would be in
       the Teton County area, which is covered by our enforcement team, and that
       he was a wanted felon, and that he was there for the purpose of establishing
       -- setting up --

Defense counsel requested a mistrial, arguing the officer’s testimony had violated the

court’s order in limine. The government maintained the order precluded testimony

concerning the underlying felony charge, not the fact of the conviction itself. The district

court agreed and denied defense counsel’s motion.

                                             II.

       Mr. Marcks contends the district court abused its discretion in admitting evidence

of his drug use and his prior felony conviction because the evidence constituted character

                                            -4-
evidence prohibited under Fed. R. Evid. 404(b). He further argues the introduction of

prior bad acts evidence was so prejudicial that the district court committed error in

denying his motion for a mistrial. We review the district court’s admission of prior

crimes evidence for an abuse of discretion. United States v. Wacker, 72 F.3d 1453, 1468

(10th Cir. 1995), cert. denied, 117 S.Ct. 136 (1996).

       Fed. R. Evid. 404(b) provides:

       Evidence of other crimes, wrongs, or acts is not admissible to prove the
       character of a person in order to show action in conformity therewith. It
       may, however, be admissible for other purposes, such as proof of motive,
       opportunity, intent, preparation, plan, knowledge, identity, or absence of
       mistake or accident . . . .

A determination of the admissibility of Rule 404(b) evidence is guided by a four-part test

requiring that (1) the evidence was offered for a proper purpose, (2) the evidence was

relevant, (3) the probative value of the evidence was not substantially outweighed by its

potential for unfair prejudice, and (4) the district court, upon request, submitted a limiting

instruction. Huddleston v. United States, 485 U.S. 681, 691-92 (1988); United States v.

Hill, 60 F.3d 672, 676 (10th Cir.), cert. denied, 116 S.Ct. 432 (1995). We consider the

prior bad acts and prior conviction separately.

       Our review under the purpose prong of the Huddleston test is complicated by the

failure of both the government and the district court to state with any precision the

purpose for admitting evidence of Mr. Marcks’ prior drug use. In response to Mr.

Marcks’ objection at trial, the government offered three alternatives for admission and the


                                             -5-
court admitted the evidence under an all-encompassing restatement of the rule. We have

rejected a sweeping application of the exceptions to Rule 404(b). In United States v.

Biswell, 700 F.2d 1310 (10th Cir. 1983), we instructed that

       [s]uch purpose should have been clearly identified and a broad statement
       invoking the Rule does not suffice. The burden is on the Government
       which “must carry the burden of showing how the proffered evidence is
       relevant to one or more issues in the case; specifically, it must articulate
       precisely the evidential hypothesis by which a fact of consequence may be
       inferred from the other acts evidence.”

Id. at 1317 (quoting United States v. Mehrmanesh, 689 F.2d 822, 830 (9th Cir. 1982)).

       Without a more reasoned explanation from the government or the court, we are at a

loss to understand the application of any of Rule 404(b)’s exceptions to this evidence.

Even assuming Mr. Marcks’ entire defense was a lack of knowledge of the substance to

be manufactured, his use of marijuana and methamphetamine does not demonstrate he

understood the chemical properties of and procedure for manufacturing methcathinone.

The government asserts that Mr. Marcks’ drug use falls within the exceptions because it

“is highly relevant . . . to prove the nature of the trusting relationship between the

conspirators.” We are underwhelmed. The argument still fails to identify an allowable

purpose under 404(b). Any relevance of that evidence does nothing to illuminate its

purpose, and proof of the nature of codefendants’ relationships does not qualify as an

enumerated exception. If the government means to suggest the evidence serves as proof

of a plan, that argument is even less compelling. Evidence of sharing a marijuana



                                             -6-
cigarette is no more linked to a conspiracy to manufacture methcathinone than evidence

of sharing a bottle of whiskey would be linked to a conspiracy to create an illegal still.

       The government’s “res gestae” theory fails for the same reason. Drug use is not, as

the government maintains, “part and parcel” of a conspiracy to manufacture drugs.1 The

government’s reliance on United States v. Kimball, 73 F.3d 269 (10th Cir. 1995), to

support this proposition is misplaced. In Kimball, we allowed the introduction of

testimony concerning defendant’s recent incarceration and limited income source as

evidence of defendant’s involvement in an armed bank robbery. Offered as proof of

motive and intent, the evidence was used to reconstruct the crime and prove its specific

elements. Id. at 272.

       That is not the case here. Mr. Marcks’ drug use had no value as evidence proving

he conspired to manufacture methcathinone. The evidence could only serve to

incriminate Mr. Marcks’ character, to portray him as a drug user who acted in conformity


       1
         The government’s claim that the evidence of drug use revealed the development
of the manufacturing conspiracy is not borne out by Mr. Northcott’s testimony. In
response to the government’s rather suggestive query, “[w]as it while you were using
drugs with the defendant that you started to talk about this plan to get chemicals and so
on,” Mr. Northcott stated:

       Yeah. It was right -- I just got out of -- like I said, I got out of the rehab and
       I went out and -- I mean, I’d only been out like a day and I started using the
       drugs. I had the recipe and it looked like a pretty easy way for me to get
       back on my feet after being in jail for six months, make some money. And I
       -- yeah, basically we just started hustling.

At best, Mr. Northcott’s answer is entirely ambiguous.

                                             -7-
with his character by manufacturing drugs. This is precisely the type of evidence

proscribed by Rule 404. See United States v. Wilson, ___ F.3d ___, 1997 WL 71659, at

*11 (10th Cir. Feb. 20, 1997); Biswell, 700 F.2d at 1318. We believe the limited

probative value of Mr. Marcks’ prior drug use is substantially outweighed by the

significant potential for prejudice from its introduction. See Huddleston, 485 U.S. at 691

(trial court must determine under Fed. R. Evid. 403 whether the evidence’s probative

value is substantially outweighed by its potential for unfair prejudice). Furthermore, the

court issued no limiting instruction explaining the discrete purpose for which the evidence

was introduced. For these reasons, we conclude the district court abused its discretion in

admitting this evidence.

       Admission of Mr. Marcks’ prior conviction is similarly flawed. The district court

issued its order in limine precluding testimony about the conviction in response to the

government’s concession to defendant’s motion. Consequently, the court made no

independent findings assessing the relevance or prejudicial effect of the evidence. In

admitting Sergeant Hughes’ testimony, the court merely concluded the mention of Mr.

Marcks’ prior conviction did not violate the order. The government now contends

introduction of Mr. Marcks’ status as a felon was required to place the officers’ actions in

context. We are unpersuaded by this argument.

       First, the evidence has no connection to any elements of the offenses with which

Mr. Marcks was charged; his felony conviction, therefore, sheds no light on the question


                                            -8-
of his guilt or innocence. And because admission of a prior felony conviction carries

even greater risk of prejudice than evidence of drug use, any potential probative value is

substantially outweighed by prejudicial effect. See id.

       Second, to the extent the government felt it necessary to provide the jury with an

extended exposition of police activity, it took that opportunity, with no objection from

Mr. Marcks, through Sergeant John’s testimony that Mr. Marcks was “wanted for some

type of warrants.” We can discern no possible reason to further specify the nature of the

warrant except to overzealously introduce damaging character evidence against Mr.

Marcks. See Wacker, 72 F.3d at 1472. Accordingly, we conclude the admission of this

evidence was, similarly, an abuse of the district court’s discretion.

       Our determination that the evidence of prior crimes was not justified under a Rule

403 or 404(b) balancing test does not end our inquiry, however. Because the error in

admitting the evidence does not implicate a constitutional right, the error is harmless

“unless it had a ‘substantial influence’ on the outcome or leaves one in ‘grave doubt’ as to

whether it had such effect.” United States v. Flanagan, 34 F.3d 949, 955 (10th Cir.

1994) (quoting Kotteakos v. United States, 328 U.S. 750, 765 (1946)). We review the

record de novo to evaluate the effect of the evidence on the jury’s verdict “in the context

of the entire case against [defendant].” Wilson, ___ F.3d at ___, 1997 WL 71659, at *11

(quoting United States v. Short, 947 F.2d 1445, 1455 (10th Cir. 1991)).




                                             -9-
       The record reveals the government introduced starkly overwhelming evidence of

Mr. Marcks’ guilt. Mr. Marcks was essentially caught red-handed -- laboratory

equipment and chemicals were seized from his temporary residence while he was present

and the manufacturing process was underway. At the time of his arrest, he made

incriminating statements to the officers. Furthermore, Mr. Northcott testified extensively

concerning their plan to manufacture drugs, and much of his testimony was corroborated

by physical evidence. We believe the admission of Mr. Marcks’ prior conviction and

drug use did not substantially influence the jury’s verdict. Accordingly, we hold the

district court’s error in admitting the evidence was harmless. See Wilson, ___ F.3d at

___, 1997 WL 71659, at *12; United States v. Sloan, 65 F.3d 861, 865 (10th Cir. 1995)

(“[w]here the evidence against a defendant is overwhelming, any error in mentioning a

defendant’s criminal record is harmless”), cert. denied, 116 S.Ct. 824 (1996).

                                            III.

       Mr. Marcks argues the first search warrant, authorizing seizure of his person, was

“a general warrant issued without probable cause for the discovery and seizure of

property,” and the illegality of that warrant rendered the subsequent search warrant

invalid. We disagree.

       In determining whether a search warrant was properly issued, the extent of our

inquiry is whether the issuing magistrate or judge had a substantial basis for finding

probable cause. United States v. Cusumano, 83 F.3d 1247, 1250 (10th Cir. 1996) (en


                                           - 10 -
banc). In this instance, the initial warrant authorized officers to search the residence at

2000 Corner Creek for the limited purpose of apprehending Mr. Marcks. Officers had

received information from an informant that Mr. Marcks was staying at a particular

residence, that he was a fugitive, and that he was involved in drug activity. After

verifying nearly every detail of the tip, Sergeant John prepared an affidavit setting forth

his knowledge of the situation. Based on the totality of the circumstances, see Illinois v.

Gates, 462 U.S. 213, 238 (1983); Cusumano, 83 F.3d at 1250, the judge’s probable cause

determination was substantially supported by the evidence.

       The warrant is not a general warrant. The Fourth Amendment requires warrants to

describe with particularity the things to be seized, so that “nothing is left to the discretion

of the officer executing the warrant.” United States v. Robertson, 21 F.3d 1030, 1033

(10th Cir. 1994), cert. denied, 116 S.Ct. 197 (1995). Generally, a warrant is sufficiently

specific when “it enables the searcher to reasonably ascertain and identify the things

authorized to be seized.” United States v. Janus Industries, 48 F.3d 1548, 1554 (10th

Cir.), cert. denied, 116 S.Ct. 87 (1995). It is difficult to imagine how the first warrant

could have described with more particularity the object of the search.2 The warrant was


       2
           The warrant provided in relevant part:

       Affidavit having been made before me by Alan John, that he has reason to
       believe that on the premises described in Exhibit A . . . there is now being
       concealed a certain person, to wit: see Exhibit B attached hereto and made a
       part hereof:
                                                                               (continued...)

                                             - 11 -
sufficiently specific, alerting officers to the person to be seized and the scope of the

search.

       Mr. Marcks’ challenge to the validity of the second warrant is premised upon the

assumption the first warrant’s infirmities precluded it from serving as a basis for a second

warrant. That was not the case. The first warrant, supported by probable cause and

sufficiently specific, legally authorized the officers to enter Mr. Marcks’ temporary

residence. While executing that warrant, officers observed in plain view items associated

with the manufacture of illegal drugs. See Harden v. California, 496 U.S. 128, 136-37

(1990); United States v. Lang, 81 F.3d 955, 967 (10th Cir. 1996). The district court

found these observations “gave the police more than adequate probable cause to apply for

a second warrant authorizing them to search the apartment for materials related to the

production and distribution of illicit drugs.” We find no reason to disturb that conclusion.

                                             IV.

       The judgment of the district court is AFFIRMED.




       2
          (...continued)
                 ....

       YOU ARE HEREBY COMMANDED to search the place named for the
       person specified . . . and if the person be found there to seize him, and
       prepare a written inventory of the person and any property seized.

     Exhibit B provided the additional information that “The Person to Be Seized” was
Thomas Marcks.

                                            - 12 -
ENTERED FOR THE COURT

John C. Porfilio
Circuit Judge




- 13 -
