Appeal from the United States District Court for the Central District of Illinois. No. 05 CR 20015-Michael P. McCuskey, Chief Judge.
The opinion of the court was delivered by: Tinder, Circuit Judge.
Before FLAUM, MANION, and TINDER, Circuit Judges.
Marhsall Blanchard was tried and convicted of one count of manufacturing methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and one count of unlawful possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). He challenges both convictions on a variety of grounds, including the denial of his pretrial motions for a bill of particulars and severance, the alleged constructive amendment of the indictment, the sufficiency of the evidence, and the introduction at trial of certain comments, originally made at a pretrial suppression hearing, by the district court judge. Blanchard also challenges his sentence, contending that the district court erroneously applied certain enhancements in calculating the advisory guidelines range. For the reasons set forth in this opinion, we vacate Blanchard's convictions and remand for a new trial.
The Defendant, Marshall Blanchard, owned two homes, one in Roberts, Illinois, and the other in Paxton, Illinois. The two towns are roughly 15 miles apart in east-central Illinois. Blanchard acquired and moved into the Roberts home no later than sometime during the year 2001, the same year in which he separated from his ex-wife.
With the exception of a seven-month period during 2003, Blanchard's son, Marshall Jr., lived with him at the*fn1 Roberts residence. In the fall of 2001, Marshall Jr. removed several firearms-four rifles and two shotguns-from an enclosed porch area of the Roberts residence and delivered them to a family friend's place of business for storage. He later returned the same firearms to the porch area of the Roberts residence, but more on that later.
After moving out of the Roberts residence in February 2003, Marshall Jr. returned sometime in August 2003. At that time, he was twenty years old and studying criminal justice at a local college. During the summer of 2004, Marshall Jr. began using the porch area of the Roberts residence as his bedroom. In order to enjoy exclusive access to his bedroom, Marshall Jr. installed a lock on the door leading to the porch area from the interior of the house and kept the only key for himself. In October or November of 2004, Marshall Jr. retrieved the aforementioned firearms from the family friend's place of business and returned them to the porch area at the Roberts residence. Those firearms remained in the porch area of the Roberts residence throughout the remainder of 2004.
Meanwhile, during the late summer and fall of 2004, Marshall Jr. began to notice peculiar physical and behavioral changes in his father. He noticed that Blanchard lost considerable weight, had blemishes and sores on his face, did not sleep much, and seemed unusually agitated. In addition, Blanchard regularly entertained visitors, some of whom Marshall Jr. did not know; however, he did know the most frequent visitor, Cynthia Blanding.
Blanding and Blanchard met in mid-October 2004. At that time, Blanding was in the process of moving out of her home, from which she had been evicted. Blanding and Blanchard became romantically involved, and Blanchard offered to let Blanding stay at the house in Paxton, which she did on occasion. She also stayed overnight with Blanchard on several occasions at the Roberts residence.
One day in the last week of December 2004, Marshall Jr. was home alone at the Roberts residence. He noticed a strong, ammonia-type smell coming from the sink; upon inspection, he observed a strainer and some glass jars in the sink. The following day, he arrived home early from work and discovered two plastic bottles containing an "off-white crystal" substance. He opened one of the bottles and encountered a strong ammonia-type odor. Marshall Jr. recalled information that he had learned about methamphetamine in his criminal justice studies; at this point, putting the off-white substance together with his father's recent physical and behavioral changes, he suspected that the substance was methamphetamine. Marshall Jr. photographed the bottles with his digital camera and took a spoon-sized sample of the off-white substance; he then went to see his mother, Lori Blanchard. After discussing his suspicions and concerns with her, Marshall Jr. left Lori with the sample of the off-white substance and a disk containing the photos from his digital camera. Lori then contacted the Roberts chief of police, Randy Kinzinger, and delivered these items to him. The off-white substance tested positive for ephedrine, a commonly used ingredient in the manufacture of methamphetamine.
Shortly thereafter, on December 30, 2004, law enforcement officers executed search warrants at both the Roberts and Paxton residences. At both residences, officers seized items that, although innocuous when viewed individually and in isolation, might nonetheless be used, as a group, for methamphetamine manufacturing. At the Paxton residence, for example, officers seized camp fuel containers, a sulfuric acid container, filters, salt, a gas mask, and pseudoephedrine packaging; cleaning officials later encountered hazardous substances, including anhydrous ammonia, at that residence. And at the Roberts residence, officers seized, among other things, numerous coffee filters, an anhydrous ammonia tank, and a propane tank. And not only was there "smoke," but also "fire"; officers seized 9.8 grams of a substance containing meth-amphetamine from the Paxton residence and 69 grams of a substance containing methamphetamine from the Roberts residence. In addition, at the Roberts residence, officers seized .01 grams of methamphetamine from the nightstand in Blanchard's bedroom and .10 grams of methamphetamine from a plastic plate beneath his bed. At the Roberts residence, officers also seized four rifles and two shotguns from the aforementioned enclosed porch area, and they seized a .32-caliber revolver and ammunition from underneath the mattress in Blanchard's bedroom.
On April 8, 2005, Blanchard was charged in a federal indictment with one count of manufacturing methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C) (Count One), and one count of unlawful possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g) (Count Two). The indictment alleged that both offenses occurred "on or about December 30, 2004."
Blanchard's trial began on March 27, 2006. At trial, the government presented the evidence seized from both residences, as well as expert testimony opining that a "meth lab" existed at the Paxton residence and that materials consistent with the manufacture of methamphetamine were found at the Roberts residence. Marshall Jr. testified regarding his observations in late 2004 that led him to suspect that his father was using methamphetamine. He also testified regarding the firearms seized from the porch area of the Roberts residence; he explained that all but one of the guns belonged to his father, that his father controlled and directed both the 2001 removal and the 2004 retrieval/return of those firearms, and that he stopped using the porch area of the Roberts residence as his bedroom in September or October 2004, allowing his father unfettered access to the porch area throughout the remainder of the year. Blanding, testifying on behalf of the government pursuant to an immunity agreement, testified that Blanchard allowed her to use the Paxton residence for methamphetamine manufacturing, and that in exchange, she supplied him with methamphetamine. In addition, she testified that Blanchard sometimes supplied materials and assisted in the manufacturing process. She further testified that on or about Christmas Eve 2004, she and Blanchard completed the manufacture of a quantity of methamphetamine at the Roberts residence. Finally, she testified that Blanchard had shown her a handgun that he kept beneath the mattress in his bedroom at the Roberts residence.
The trial concluded on March 31, 2006, with the jury finding Blanchard guilty on both counts. The district court rejected Blanchard's post-verdict motion for judgment of acquittal, characterizing the evidence in support of both counts as "overwhelming." The court sentenced Blanchard to 150 months' imprisonment on Count One and 120 months' imprisonment on Count Two, to be served concurrently. In addition, the court sentenced Blanchard to three years of supervised release and a $100 special assessment. Blanchard timely filed this appeal, challenging both his convictions and his sentence.
On appeal, Blanchard challenges both convictions on a variety of grounds, including (1) the denial of his pretrial motions for a bill of particulars and a severance;
(2) an alleged fatal variance between the date specified in the indictment and the evidence presented at trial, resulting in constructive amendment of the indictment;
(3) certain statements made by the trial judge at a pretrial suppression hearing and subsequently introduced at trial; and (4) the sufficiency of the evidence. We address these arguments in turn below. Blanchard also challenges his sentence, but in light of our conclusion with regard to his convictions, we need not address that challenge.
A. Pretrial Motions for Bill of Particulars and Severance
Before trial, Blanchard moved for a bill of particulars pursuant to Federal Rule of Criminal Procedure 7(f). The indictment alleged that Blanchard committed both the methamphetamine manufacturing offense and the firearms offense "on or about December 30, 2004, in the Central District of Illinois." In moving for a bill of particu-lars, Blanchard sought more specific information concerning the time and place of the alleged offenses, as well as the identity of the firearm (or firearms) alleged in Count Two. The district court denied that motion, finding that "the charges are not complex, the indictment is sufficiently clear, and Defendant has been provided with discovery regarding the charges." Blanchard now appeals, contending that the denial of this motion deprived him of an adequate opportunity to prepare for and meet the government's evidence at trial.
We review the trial court's discretionary decision to deny a motion for a bill of particulars deferentially, reversing only upon an abuse of that discretion. United States v. Fassnacht, 332 F.3d 440, 446 (7th Cir. 2003); see also United States v. Hernandez, 330 F.3d 964, 975 (7th Cir. 2003). We will reverse only upon a showing of actual prejudice to the defendant. Hernandez, 330 F.3d at 975.
Our bill-of-particulars analysis is similar to our constitutional sufficiency-of-the-indictment analysis; in both cases, the key question is whether the defendant was sufficiently apprised of the charges against him in order to enable adequate trial preparation. See Fassnacht, 332 F.3d at 446; see also Hernandez, 330 F.3d at 975 ("[A] bill of particulars [is] unnecessary where the indictment sets forth the elements of the charged offenses and provides sufficient notice of the charges to enable the defendant to prepare his defense."). Information relevant to the preparation of a defense includes the elements of each charged offense, the time and place of the accused's allegedly criminal conduct, and a citation to the statute or statutes violated. See Fassnacht, 332 F.3d at 446. Where the indictment fails to provide the full panoply of such information, a bill of particulars is nonetheless unnecessary if the information "is available through 'some other satisfactory form,' such as discovery." Hernandez, 330 F.3d at 975 (quoting United States v. Canino, 949 F.2d 928, 949 (7th Cir. 1992)).
Because Blanchard had ample access to the information necessary to prepare his defense, the district court did not abuse its discretion here. Although the indictment was somewhat sparse, Blanchard was the beneficiary of extensive pretrial discovery. For example, he received law enforcement reports concerning the searches of his two residences, the corresponding search warrants and sup-porting documents, and a report of his statements to law enforcement officers. Given knowledge of the evidence seized from both residences and the terms of the indictment, Blanchard was undoubtedly aware that the government might seek to prove that he manfuctured methamphetamine at either residence and that he possessed firearms at the Roberts residence on a date approximating the "on or about" date alleged in the indictment. This was more than sufficient to enable Blanchard to prepare for trial. See Fassnacht, 332 F.3d at 446 (noting that "the defendant's constitutional right is to know the offense with which he is charged, not to know the details of how it will be proved" (quoting United States v. Kendall, 665 F.2d 126, 135 (7th Cir. 1981))). Therefore, the district court did not abuse its discretion in denying Blanchard's motion for a bill of particulars.
Before trial, Blanchard also moved to sever Counts One and Two for separate trials pursuant to Federal Rules of Criminal Procedure 8(a) and 14. He now appeals the district court's denial of that motion, arguing that the joinder of the drug and firearms offenses was improper and unduly prejudiced him at trial. Although Blanchard waived the Rule 14 severance aspect of this motion by failing to renew it at the close of the evidence, see United States v. Ross, 510 F.3d 702, 711 (7th Cir. 2007) (explaining that a Rule 14 motion for severance is waived if not renewed at the close of the evidence), the Rule 8 misjoinder aspect of the motion, though also not renewed, was properly preserved. See id. at 710 n.1 ("A defendant need not renew a Rule 8 motion at the close of the evidence to preserve the argument for appeal.").
We review Blanchard's misjoinder claim de novo, focusing on the face of the indictment rather than the evidence adduced at trial. Id. at 710; see also United States v. Lanas, 324 F.3d 894, 899 (7th Cir. 2003). Federal Rule of Criminal Procedure 8(a) permits joinder of offenses where they are (1) "of the same or similar character," (2) "based on the same act or transaction," or (3) "constitute parts of a common scheme or plan." We construe this rule broadly in the interest of conserving judicial resources and avoiding costly, duplicative trials. United States v. Nettles, 476 F.3d 508, 516 (7th Cir. 2007); United States v. Rollins, 301 F.3d 511, 518 n.1 (7th Cir. 2002). Even where misjoinder occurs, we will not reverse unless the defendant can show actual prejudice-i.e., that the error "had substantial and injurious effect or influence in determining the jury's verdict." Ross, 510 F.3d at 710-11 (citing United States v. Lane, 474 U.S. 438, 449 (1986)); see also United States v. Hubbard, 61 F.3d 1261, 1271 (7th Cir. 1995).
The first obstacle to Blanchard's misjoinder argument is our presumption that, because of the close relationship between drug trafficking and firearms offenses, joinder of such offenses is ordinarily proper. See United States v. Stokes, 211 F.3d 1039, 1042 (7th Cir. 2000). This presumption arises from the "natural inferences that may be drawn from the contemporaneous possession of guns and drugs or drug paraphernelia: the firearm is an indication of drug activity, and participation in drug trafficking supplies a motive for having the gun." Id. (quoting Hubbard, 61 F.3d at 1270). Although that presumption might be overcome by, for example, a significant temporal disconnect between the alleged offenses, see Hubbard, 61 F.3d at 1271 (concluding that firearms and narcotics charges were misjoined where nearly a year and a half transpired between the two offenses), there was no such disconnect here; the indictment alleged that the methamphetamine manufacturing and firearms offenses occurred at approximately the same time, and evidence of both offenses was recovered from the Roberts residence. See Stokes, 211 F.3d at 1042; United States v. Windom, 19 F.3d 1190, 1197 (7th Cir. 1994) (explaining that "joinder of a weapons offense with drug charges is proper under Rule 8(a), especially when the weapons and drugs are found in the same search"). Therefore, the district court did not err in joining these offenses for trial under Rule 8(a).
Moreover, even if the offenses had been misjoined, the error would be harmless because Blanchard cannot show prejudice. See, e.g., Ross, 510 F.3d at 710-11; Hubbard, 61 F.3d at 1272. Blanchard points out that, absent joinder of the two counts, the drug offense could have been tried without informing the jury that he was a convicted felon. Conceding this point, we are not convinced that the jury's knowledge of Blanchard's prior felony conviction had a "substantial and injurious effect or influence" on their deliberations. Ross, 510 F.3d at 711. As we explain in further detail below, the evidence of Blanchard's guilt on both counts was considerable, mitigating any risk that the jury's decision was influenced by knowledge that Blanchard had previously committed a felony. See id. Furthermore, the jury was properly instructed to consider each count and the corresponding evidence separately, not allowing their decision on one count to color their decision on the other. There is no reason to presume that they did not adhere to these instructions. Id; see also United States v. Coleman, 22 F.3d 126, 135 (7th Cir. 1994) (explaining that where the "jury [is] instructed to consider each count and the relating evidence separately . . . there [is] no reason to suppose that it would disregard this mandate" (citation omitted)).
To recap, the district court did not abuse its discretion in denying Blanchard's motion for a bill of particulars, because Blanchard was properly apprised of the charges against him and was the beneficiary of extensive pretrial discovery that filled in any gaps in the somewhat-sparse indictment; thus, he was not denied the opportunity to adequately prepare for trial. In addition, Blanchard has demonstrated neither misjoinder of the drug and firearms counts nor prejudice. Accordingly, the district court did not err in joining Counts One and Two for trial. Blanchard waived the Rule 14 aspect of his motion by failing to renew it at the close of the evidence, but even if it had not been waived, his inability to show prejudice would doom this claim as well.
B. Constructive Amendment of Indictment
Blanchard next argues that there was a fatal variance between the date alleged in the indictment-on or about December 30, 2004-and the evidence presented at trial regarding the date (or dates) on which he manufactured methamphetamine, thereby constructively amending the indictment in violation of the Fifth Amendment. Blanchard's argument focuses primarily on Blanding's testimony. At trial, she testified that she manufactured methamphetamine with Blanchard on several occasions in November and December 2004, and that the last occasion was on "Christmas Eve or right before Christmas." However, on cross-examination, Blanding conceded that she could be no more specific than "on or before Christmas Eve," acknowledging that her memory was impaired because she was using methamphetamine regularly in late 2004. In addition, a government expert conceded on cross-examination that he could not definitively state when the "meth lab" at the Paxton residence was created, and that it might have been created as many as six ...