529 lines
29 KiB
Plaintext
529 lines
29 KiB
Plaintext
From: rbrennan@aol.com (RBrennan)
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Newsgroups: alt.drugs
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Subject: The Courts, the DEA, and Drugs
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Date: 30 Dec 1994 19:09:32 -0500
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Message-ID: <3e27fs$qrq@newsbf02.news.aol.com>
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With all of the furor about the DEA online recently, I decided to
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compile a short but interesting group of Federal Circuit Court of
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Appeals & US Supreme Court decisions addressing the topic of how
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the DEA runs operations. The following material contains excerpts
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from various court opinions. The actual final legal disposition of
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most of these cases as well as the substantive and procedural legal
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attacks brought have been edited out. I would also like to point
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out that the law changes frequently and may be interpreted
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differently by different Federal Circuits and different judges, and
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the following material does not necessarily reflect the current law
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or the majority concensus. However, for what it's worth, it is
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interesting to see how the DEA operates.
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-RBrennan
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"And you thought we had rights in this country!"
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(Cite as: 476 U.S. 321, 106 S.Ct. 1871, 90 L.Ed.2d 299)
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Thomas J. HENDERSON, Scott O. Thornton and Ruth Freedman,
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Petitioners
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v.
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UNITED STATES.
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No. 84-1744.
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Argued April 1, 1986.
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Decided May 19, 1986.
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**1873 POWELL, J., delivered the opinion of the Court, in
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which BURGER, C.J., and REHNQUIST, STEVENS, and O'CONNOR, JJ.,
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joined. WHITE, J., filed a dissenting opinion, in which BRENNAN,
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MARSHALL, and BLACKMUN, JJ., joined, post, p. ---.
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I
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A jury convicted petitioners of charges arising out of
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manufacture, possession, and distribution of controlled
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substances.S *323 [FN1] The evidence at trial showed that in
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February and April 1980 petitioner Henderson, under the alias
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"Richard Martin," placed orders with a scientific supply company in
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Ohio for chemicals that could be used in the manufacture of illegal
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drugs. The orders attracted the attention of the Drug Enforcement
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Agency. Agents obtained a warrant from a United States Magistrate,
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authorizing installation of an electronic transmitter in one of the
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chemical containers. Henderson drove from California to Ohio,
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picked up the second order of chemicals on June 24, and headed
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west. Agents lost the tracking signal despite their following by
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both car and plane, only to receive it later in July from
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petitioner Freedman's house near Watsonville, California. A search
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pursuant to warrant on July 17 revealed an illicit drug factory.
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The last of the codefendants, Peter Bell, was arraigned on
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September 3, 1980.
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FN1. The jury convicted all three petitioners of conspiracy to
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manufacture and possess with intent to distribute methamphetamine
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and phenyl-2- propanone, see 21 U.S.C. s 846; petitioners Thornton
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and Freedman of manufacture and possession with intent to
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distribute of methamphetamine, see s 842(a)(1); and petitioner
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Henderson of traveling interstate with intent to promote the
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manufacture and possession of methamphetamine, see 18 U.S.C. s
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1952(a)(3).
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(Cite as: 27 F.3d 1035)
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UNITED STATES of America, Plaintiff-Appellee,
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v.
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Melvin Glenn NEAL, Ricky Clyde Duncan, Leslie Raymond Jones,
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Clifford P.Sutherland, James Glen Pace, Evelyn Austin Graham,
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Timothy Wade Green, Jacky Ronald Pace, Gilbert D. Smith, Jimmy
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Wayne Joyce, Defendants-Appellants.
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No. 90-1957.
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United States Court of Appeals,
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Fifth Circuit.
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July 21, 1994.
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Rehearing Denied Sept. 22, 1994.
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Before GOLDBERG, HIGGINBOTHAM, and EMILIO M. GARZA, Circuit
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Judges.
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EMILIO M. GARZA, Circuit Judge:
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Defendants Jacky Ronald Pace, James Glen Pace, Melvin Glenn
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Neal, Ricky Clyde Duncan, Leslie Raymond Jones, Clifford P.
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Sutherland, Evelyn Austin Graham, Timothy Wade Green, Gilbert D.
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Smith, and Jimmy Wayne Joyce ("the Defendants") were jointly tried
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and convicted of various offenses stemming from a conspiracy to
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manufacture, possess, and distribute amphetamine. All ten
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defendants were convicted of conspiring to manufacture, distribute,
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or possess with intent to distribute a controlled substance, in
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violation of 21 U.S.C. ss 841(a)(1) and 846 (1988). [FN1] All ten
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defendants now appeal their *1041 convictions. We affirm in part,
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vacate in part, and remand in part.
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FN1. Additionally, the jury found Jacky Pace guilty of one
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count of aiding and abetting the manufacture of amphetamine, in
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violation of 21 U.S.C. ss 841(a)(1) and (2); one count of engaging
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in a continuing criminal enterprise, in violation of 21 U.S.C. s
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848; multiple counts of investing income derived from a drug
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conspiracy, in violation of 21 U.S.C. s 854; one count of aiding
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and abetting interstate travel in furtherance of a drug conspiracy,
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in violation of 18 U.S.C. ss 1952 and 2; and one count of
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conspiring to impede the Internal Revenue Service, in violation of
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18 U.S.C. s 371. James Glen Pace was convicted of multiple counts
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of investing income derived from a drug conspiracy, one count of
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conspiring to impede the Internal Revenue Service, and one count of
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using a communication facility to facilitate the conspiracy to
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manufacture amphetamine, in violation of 21 U.S.C. s 843(b). Neal
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was found guilty of engaging in a continuing criminal enterprise,
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multiple counts of investing income derived from a drug conspiracy,
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and conspiring to impede the Internal Revenue Service. The jury
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convicted Duncan of engaging in a continuing criminal enterprise,
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investing income derived from a drug conspiracy, aiding and
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abetting interstate travel in furtherance of a drug conspiracy, and
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conspiring to impede the Internal Revenue Service. Smith was found
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guilty of five counts of investing income derived from a drug
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conspiracy and one count of aiding and abetting interstate travel
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in furtherance of a drug conspiracy.
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I
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In 1984 and 1985, Jacky Pace operated an extensive conspiracy
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to distribute amphetamine. At varying points throughout the
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conspiracy's existence, Pace recruited the other Defendants into
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his organization. Pace also established a network of phony
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corporations ("the JRP group") to purchase the chemicals and
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equipment necessary to manufacture amphetamine and to launder the
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money he received from his amphetamine operations. Agents of the
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Drug Enforcement Administration ("DEA") and the Texas Department of
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Public Safety ("TDPS") apparently learned of Pace's involvement in
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the amphetamine trade through surveillance of Metroplex Chemicals,
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a Dallas business that supplied chemicals and glassware to
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amphetamine manufacturers.
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In June 1987, the government brought a forty-three count
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indictment charging thirty-one persons with various offenses
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arising out of their participation in Pace's amphetamine
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distribution ring. The case proceeded to trial in May 1989, but
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the district court declared a mistrial because of excessive
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publicity. In October 1989, the case again proceeded to trial, and
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the jury returned with its guilty verdicts in September 1990.
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Cite as: 16 F.3d 1223
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UNITED STATES of America, Plaintiff-Appellant,
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v.
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Bud RIGGINS and Donald McVean, Defendants-Appellees.
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Nos. 93-5075, 93-5076.
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United States Court of Appeals, Sixth Circuit.
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Before: GUY and SILER, Circuit Judges; and CHURCHILL, Senior
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District Judge. [FN*]
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PER CURIAM.
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**1 After a jury trial, defendants were convicted of
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conspiracy and attempt to manufacture a controlled substance, in
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violation of 21 U.S.C. s 846, as well as possession of triple-neck
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round-bottom flasks with intent to manufacture a controlled
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substance, in violation of 21 U.S.C. s 843(a)(6). Defendants filed
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a post-trial Rule 29 motion for judgment of acquittal, which the
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district court granted. The government now challenges the court's
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decision. Finding that a reasonable jury could have concluded that
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defendants' conduct satisfied, beyond a reasonable doubt, the
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elements of the charged offenses, we reverse and remand.
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I.
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In May 1991, Bud Riggins placed an order for ten kilograms of
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isosafrole and twenty liters of methanol with Eastman Fine
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Chemicals ("Eastman") of Rochester, New York. For numerous
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reasons, Riggins's isosafrole order aroused the suspicion of
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Richard Hapeman, Eastman's manager of quality assurance. For
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instance, isosafrole was, at the time, a chemical found on the
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DEA's " 'watch list,' an informal list of chemicals often used
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illegally which is published to suppliers." [FN1] In addition, the
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order was far larger than standard orders, which typically do not
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exceed one kilogram. Hapeman also noted that Riggins did not
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appear to be using a business address, and that the business
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Riggins had listed, Logan Ag Lab & Supply, had never before placed
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an order with Eastman. Furthermore, Riggins initially informed
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Hapeman that he wanted the chemicals shipped COD, a request that
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Hapeman could not honor given company policy. That Riggins would
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decide to initiate dealings with Eastman at that point seemed
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particularly strange to Hapeman, especially since, as Hapeman
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surmised, Riggins could have sought out other suppliers that were
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not only geographically closer to him, but also could offer a
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better price.
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Dubious as to Riggins's intentions, Hapeman sought and
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obtained Riggins's written assurance that the chemicals would not
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be used in any food or drug or in a residential setting. Hapeman
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also contacted the DEA, notifying the agency as to his suspicions.
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The case was then referred to the DEA office in Louisville,
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Kentucky. Louisville DEA agents contacted the DEA laboratory in
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Chicago and were informed that isosafrole is a precursor to the
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manufacture of 3, 4-methylenedioxyamphetamine ("MDA"), a schedule
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I hallucinogen under 21 U.S.C. s 812.
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After getting confirmation from Eastman that Riggins had
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indeed placed the order in question, Louisville DEA Agent Gary
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Tennant decided to make a controlled delivery of the chemicals.
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Although a perusal of the local phone book did not reveal a phone
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number for either Riggins or the Logan Ag Lab & Supply Company,
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Tennant did manage to find a number to call by consulting various
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shipping documents. The individual who answered the call, "Don,"
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instructed that the delivery be made to an airplane hanger on
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Riggins's farm in Logan County, Kentucky.
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After the isosafrole package had been equipped with a beeper
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transmitting device, a delivery for the full amount under Riggins's
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order took place on June 10, 1991. A person identifying himself as
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Clarence Gamble [FN2] accepted the delivery. As the delivery was
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being made, Tennant noticed a "distinctive chemical smell," which
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he associated with acetic anhydride, a substance used in the
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production of amphetamines. The DEA continued their surveillance
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of the area for nearly 40 hours.
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**2 On June 11, 1991, the DEA, accompanied by state and local
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police, executed a search of the hanger and the surrounding area.
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As the investigators arrived on the scene, Riggins remarked:
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"[Y]ou are here about them chemicals ain't you." (App. 234.) He
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then informed the agents that he had removed the isosafrole and
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methanol from the hanger to a residence on the property. At the
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time, the residence, though owned by Riggins, was occupied by
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Donald McVean, a friend and business associate of Riggins. During
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the search of the hanger, DEA Agent Arnold Fitzgerald, much as
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Tennant had done the day before, noticed the smell of acetic
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anhydride. [FN3] The search did, in fact, uncover acetic anhydride
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as well as hydrobromic acid and 11 marijuana plants. Perhaps as
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revealing as what the agents did find was what they did not find:
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"There was no evidence found indicating the existence of a
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legitimate chemical business. "There was no evidence of the
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presence of fire safety equipment or use of safety storage
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principles."
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The agents also searched Riggins's pick-up truck, which was
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parked outside the hanger. In the back seat, they found a book
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entitled "Drug Manufacturing for Fun and Profit." While the book
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did not include a recipe for MDA, it did devote a chapter to the
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manufacture of dimethyltryptomine, or "DMT," a controlled substance
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manufactured in much the same way as MDA.
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The most plentiful source of evidence turned out to be
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Riggins's residence, located in a large clearing at a "considerable
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distance from any other building" on the farm. While the agents
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left the premises to secure a search warrant for the residence,
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McVean was permitted to remain inside unattended for approximately
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30 to 40 minutes. When the agents returned, [FN4] and immediately
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upon entering the residence, Tennant and Fitzgerald detected "a
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very pungent and strong smell of ether." [FN5]
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A thorough search ensued after the agents ventilated the
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residence. In the living room, the agents noted the following
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"scattered about" items: Isosafrole--(10) 1 kilogram bottles--full;
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(2) 500 milliliter bottles--full and 1/2 full Methanol--(1) 20
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liter metal can--full Ethyl Alcohol--(2) 4 liter bottles--full and
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1/2 full Sulfuric Acid--(1) 6 1/2 liter bottle--full and (1) 2 1/2
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liter bottle-- 1/2 full Hydrogen Peroxide 30%--(5) 500 milliliter
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bottles--full; (1) 4 liter glass bottle-- 1/2 full Ethyl Ether
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(EM)--(10) 1 liter bottles--(9) full; (1) 1/2 full Ethyl Ether
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(Fischer)--(1) 4 liter bottle-- 1/2 full Alumina Activated--(1) 2
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1/2 liter bottle--full Toluene--(1) 4 liter bottle--full Formic
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Acid 88%--(4) 4 liter plastic bottles--3 1/4 full Formic Acid--(2)
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2/5 liter plastic bottles--full Aluminum Metal--(2) 500 milligram
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plastic bottles--full Isopropyl 70%--(12) 1 pint bottles--full
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(Wal-Mart brand) Isatoic Anhydride--(1) 500 gram bottles--full
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Muriatic Acid--(1) 1 gallon plastic bottle--full **3 Chromium
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Trioxide--(1) 1 liter bottle--full Sodium Acetate--(1) 25 pound
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plastic bottle The agents also discovered (3) 3,000 milliliter
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single neck flasks; (1) 1,000 milliliter single neck flask; and
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(1) hot plate.
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In addition to a Lyman 500 scale, an Ohaus GT 8000 scale and
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(2) lab thermometers, a search of the kitchen yielded: Acetone
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[FN6] Phosphoric Acid--(1) 2 1/2 liter bottle-- 3/4 full
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Raney-Nickel [FN7]--(5) 100 gram metal containers--full (stored in
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refrigerator) Chromium Trioxide--(1) 500 gram bottle-- 1/2 full
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Inositol [FN8] Empty Gelatine Capsules [FN9]--(2) plastic zip lock
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bags containing approximately 420
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In a first floor bedroom, the agents found a computer that was
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in the process of printing out documents. These documents, Riggins
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and McVean contend, were catalogs that they had intended to send to
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companies in the chemical supply industry. A search of another
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bedroom netted the agents a loaded .38 caliber Smith & Wesson
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revolver. The revolver was found on a night stand beside a bed.
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McVean apparently had been using the room as his sleeping area.
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The agents also searched the attic. The items found there
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were particularly noteworthy because they had been concealed behind
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a sheet of plywood. Once McVean found out that the hiding place
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had been discovered, he said: "[O]h, shit." [FN10] The attic is
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where the agents located Riggins's and McVean's most sizable cache:
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Hydrochloric Acid--(1) 2 1/2 liter bottle-- 3/4 full Potassium
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Dichromate Merk--(1) 1 pound container--full Ethyl Alcohol--(1) 4
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liter bottle-- 1/10 full Acetic Acid, Glacial--(1) 2 1/2 liter
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bottle--full Ethyl Acetate--(1) 4 liter bottle-- 3/4 full
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Formamide--(1) 1 quart bottle--full Diethyl Malonate--(1) 2
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kilogram bottle-- 1/2 full Phenylacetaldehyde--(2) 250 gram
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bottles-- 3/4 full each 1-Bromoethyl Benzene--(1) 100 gram bottle--
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1/2 full N-Butyl Chloride--(1) 4 liter bottle--full Nitric
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Acid--(2) 2 1/2 liter bottles--full Titrant Standard Potassium
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Hydroxide Alcoholic--(2) 500 ML bottle--full Isosafrole--(3) 250
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gram bottles--full Isonitrosoproprophenone--(4) 1/2 quart
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bottles--full Magnesium metal--(6) 500 gram bottles--full Unknown
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liquid--(1) 4 liter bottle-- 1/4 full Potassium Permanganate--(2)
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500 gram bottles--full Pyridine--(1) 1 one liter bottle-- 1/4 full
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Phenylacetyl--(4) 100 gram bottles-- 3/4 full Toluidine--(1) 500
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gram bottle--full Acetyl Acetone--(2) 500 milliliter bottles--full
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Carbon Tetrachloride--(1) 500 milliliter bottle--full
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Phenylacetonitrile--(1) 1 kilogram bottle--full Methyl Iodide--(1)
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100 milliliter bottle--full Chromium Trioxide--(1) 500 gram
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bottle--full The attic also produced the following paraphernalia:
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[FN11] (3) 5,000 milliliter triple neck flasks, (3) 3,000
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milliliter triple neck flasks, (4) 4,000 milliliter Pyrex beakers,
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(1) heating mantel (100 ml.), [FN12] separatory funnels, graduated
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cylinders, and condensers.
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**4 In March 1992, on the strength of the evidence obtained as
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a result of the searches detailed above, a federal grand jury
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returned a seven-count indictment naming Riggins and McVean as
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defendants. Specifically, the indictment listed several counts
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relating directly to the defendants' alleged MDA operation,
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including: conspiracy [FN13] (Count 1) and attempt [FN14] (Count
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2) to manufacture MDA, in violation of 21 U.S.C. s 846; and
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possession of triple-neck round-bottom flasks with intent to
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manufacture MDA, in violation of 21 U.S.C. s 843(a)(6) [FN15]
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(Count 5). The indictment also contained two firearm charges: the
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use and carrying of a firearm, in violation of 18 U.S.C. s 924(c)
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(Count 3); and possession of a firearm by a convicted felon,
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[FN16] in violation of 18 U.S.C. s 922(g)(1) & (2) (Count 4).
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Finally, the indictment charged Riggins with two other drug-related
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offenses: manufacturing marijuana, in violation of 21 U.S.C. s 841
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(Count 6); and possession with intent to distribute marijuana, in
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violation of 21 U.S.C. s 841(a)(1) (Count 7).
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At trial, defendants attempted to portray their operation as
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a legitimate chemical supply and produce business, not an illicit
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drug manufacturing center. Testimony given during the trial
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established that the government tested samples of 10 out of the 41
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substances found as a result of the search. The government's
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chemist, Odest Washington, opined that Riggins's farm provided an
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ideal setting for a clandestine laboratory because it was well
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hidden by trees. As to the chemicals found on the farm, Washington
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testified that eight of them could have been used to manufacture
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MDA: isosafrole, formamide, formic acid, sulfuric acid,
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hydrochloric acid, hydrogen peroxide, toluidine, acetone, and
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methanol.
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Although virtually all of the ingredients to make MDA were
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thus present, Washington noted that several pieces of laboratory
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equipment vital to the manufacturing process were not. For
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instance, the government's search of Riggins's farm did not turn up
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a rheostat, a device for regulating temperature. In addition, the
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agents could not locate ring stands, clamps, or other apparatus
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designed to hold the equipment during synthesis. Finally,
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Washington observed that the heating mantle found in the attic of
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Riggins's residence would not have fit the 3,000 or 5,000
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millimeter flasks that were also found in the attic.
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At the close of the government's case and again, at the close
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of all the proof, defendants moved for a judgment of acquittal
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pursuant Fed.R.Crim.P. 29. On both occasions, the district court
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denied defendants' motions. Subsequently, the jury returned a not
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guilty verdict against Riggins on Counts 4, 6, and 7. The jury
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did, however, convict both defendants on Counts 1, 2, and 5, and
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McVean on Count 4. [FN17]
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(Cite as 8 F.3d 316)
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UNITED STATES of America, Plaintiff-Appellee,
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v.
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Karl HOFSTATTER (92-1836) and Michael Griffor (92-1805),
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Defendants-Appellants.
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Nos. 92-1805/1836.
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United States Court of Appeals,
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Sixth Circuit.
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Argued June 17, 1993.
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Decided Sept. 28, 1993 [FN1].
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I
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In May of 1989 the Drug Enforcement Administration received
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information from a chemical company in Connecticut that a
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suspicious order had been received from "JAH Company," of Ann
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Arbor, Michigan, for the chemical phenylpropanolamine.
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The DEA subsequently monitored numerous purchases of precursor
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chemicals by defendants Hofstatter and Griffor, ostensibly acting
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on behalf of JAH or "Robert Kaye and Company." On one occasion
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defendant Griffor was found to have used the name "Michael Edwards"
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in picking up a shipment of ephedrine.
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On June 20, 1991, agents of the DEA executed a warrant to search
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the premises at 712 and 715 East Kingsley, in Ann Arbor, *320 where
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the defendants had gone after one of their pickups of chemicals.
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At 712 East Kingsley the agents found laboratory equipment and
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supplies, including vacuum flasks and a turkey baster, along with
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written records of experiments involving the manufacture of
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methylcathinone, an analogue of the controlled substance
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methamphetamine. In a box with chemicals and equipment was a
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notebook detailing the experiments. One entry in the notebook read
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as follows: "let some sit for 3 days (less smell) closer to
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amphed." Another read "took first sample at 8:00 pm--quality:
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(all est. from - 1--+ 10) euphoria (7), speed (6), conversation
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(8), smell (2) [FN*] taste (1), jones (4) (one being no jones)."
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Taped to the inside covers of the notebook were photographs of Mr.
|
|
Griffor and his dogs. Also seized were personal papers of Mr.
|
|
Hofstatter and address books containing names of chemical supply
|
|
companies and various chemical formulae. In a kitchen freezer
|
|
agents found more than a kilogram of phenylpropanolamine solution.
|
|
Elsewhere in the house they found chemicals needed for the
|
|
manufacture of methylcathinone, cathinone, 4-methylaminorex, and
|
|
n-methyl-4-methylaminorex.
|
|
There was no toluene (a solvent widely used in making such
|
|
substances), but, as noted above, there was evidence that toluene
|
|
had been used.
|
|
|
|
FN* A note connected to the rating for "smell" read as
|
|
follows: "smells as if we did not get all of toluene out but K
|
|
insists that we did. I am going to reclean some and find out."
|
|
|
|
Mr. Griffor's automobile, which had been used the day before to
|
|
pick up ephedrine, was parked in the driveway of 715 East Kingsley.
|
|
The automobile was also searched. Inside the car were found two
|
|
bags containing personal papers, notebooks, and envelopes in the
|
|
name of Mr. Hofstatter. The documents described "khat" (an East
|
|
African plant containing cathinone) and methylaminorex (a drug also
|
|
known as "rex" or "U4euh," a homophone of euphoria). Formulae for
|
|
the manufacture of methylcathinone were found in the car, as was a
|
|
Federal Register notice indicating that methylaminorex was to be
|
|
scheduled as a controlled substance by the DEA.
|
|
The defendants were indicted on charges of conspiracy to possess
|
|
listed chemicals with intent to manufacture controlled substances
|
|
and controlled substance analogues (count one); possession of
|
|
listed chemicals with intent to manufacture controlled substance
|
|
analogues and controlled substances (counts two as to Griffor,
|
|
three as to Hofstatter, and four, five, and six); conspiracy to
|
|
open or maintain a place for the purpose of manufacturing
|
|
controlled substance analogues and controlled substances (count
|
|
seven), and endangering human life while attempting to manufacture
|
|
a controlled substance illegally (count eight as to Hofstatter).
|
|
DEA chemist Terry Dal Cason determined that the seized documents
|
|
contained 23 iterations of the formula for manufacturing
|
|
methylcathinone. Cason testified at trial that the defendants had
|
|
the chemicals and the know-how necessary to manufacture
|
|
methylcathinone, cathinone, 4-methylaminorex, and
|
|
n-methyl-4-methylaminorex. Cason also testified that
|
|
methylcathinone has a chemical structure substantially similar to
|
|
that of the controlled substance methamphetamine; that cathinone
|
|
has a chemical structure substantially similar to that of
|
|
amphetamine, which is likewise a controlled substance; that 4-
|
|
methylaminorex is a controlled substance; and that
|
|
-methyl-4-methylaminorex has a chemical structure substantially
|
|
similar to that of 4-methylaminorex.
|
|
DEA Agent Mary Sandy testified that while posing as a chemical
|
|
supply store employee she had twice sold listed precursor chemicals
|
|
to Mr. Hofstatter. She went on to tell the jury that after the
|
|
ephedrine purchase on June 19, 1991, agents followed Messrs.
|
|
Hofstatter and Griffor to 715 Kingsley in Ann Arbor, where Mr.
|
|
Hofstatter removed items from Mr. Griffor's car while it was parked
|
|
in the driveway. Through the car window Agent Sandy was able to
|
|
see a computer and other items.
|
|
The government also introduced evidence that in May of 1987 local
|
|
authorities had discovered chemicals, laboratory equipment,
|
|
formulae, and small quantities of 4-methylaminorex in a trailer
|
|
rented by Mr. Hofstatter in Pasco County, Florida. It would be
|
|
fair to infer from this evidence that the trailer had been used as
|
|
a site for illicit manufacture of a controlled substance.
|
|
The jury found Mr. Hofstatter guilty on all counts in which he
|
|
was charged except counts seven and eight. Mr. Griffor was
|
|
convicted on all of the counts in which he was charged except
|
|
counts two and seven. Mr. Hofstatter was sentenced to concurrent
|
|
terms of imprisonment for 96 months. The sentence reflected a
|
|
two-level enhancement in Mr. Hofstatter's guideline offense level
|
|
because of his having played a leadership role. Mr. Griffor was
|
|
sentenced to concurrent sentences of 36 months. Both defendants
|
|
perfected timely appeals.
|
|
|
|
(Cite as: 955 F.2d 630)
|
|
UNITED STATES of America, Plaintiff-Appellee,
|
|
v.
|
|
Wayne Richard ALLEN, Jr., Defendant-Appellant.
|
|
No. 90-50666.
|
|
United States Court of Appeals,
|
|
Ninth Circuit.
|
|
Submitted Jan. 8, 1992 [FN*].
|
|
|
|
|
|
Before FARRIS, NOONAN and TROTT, Circuit Judges.
|
|
|
|
PER CURIAM:
|
|
Wayne Richard Allen appeals the district court's denial of his
|
|
motion to dismiss the indictment against him on the ground of
|
|
outrageous government misconduct. We affirm.
|
|
In 1985, one Charles Hill organized Triple Neck Scientific, a
|
|
chemical supply house patronized by Allen and the source of
|
|
information that Allen was involved in the manufacture of
|
|
methamphetamine. At about the same time, Hill contacted the *631
|
|
local Drug Enforcement Agency office and agreed to supply them with
|
|
information regarding customers purchasing chemicals and equipment
|
|
used to manufacture methamphetamine. This arrangement enabled the
|
|
DEA to initiate an operation spanning some four years to identify
|
|
methamphetamine manufacturers in southern California. During that
|
|
time, the DEA undertook a variety of actions, including (1) the
|
|
purchase of advertising to assist Hill in generating business, (2)
|
|
camera surveillance of Triple Neck premises and (3) the use of a
|
|
law enforcement officer as an undercover employee of Triple Neck.
|
|
The DEA was aware that substantial amounts of precursor chemicals
|
|
were being sold during the operation, and it permitted Hill to
|
|
retain all funds he received through Triple Neck.
|
|
[1] Allen contends that government involvement in the
|
|
oversight and manning of Triple Neck Scientific amounted to
|
|
outrageous misconduct. We will dismiss an indictment if government
|
|
misconduct has been so outrageous that it results in a violation of
|
|
due process. United States v. Luttrell, 889 F.2d 806, 811 (9th
|
|
Cir.1989), modified, 923 F.2d 764 (9th Cir.1991) (en banc). We
|
|
have pointed out that the channel for relief opened by this defense
|
|
is a most narrow one. United States v. Simpson, 813 F.2d 1462,
|
|
1465 (9th Cir.), cert. denied, 484 U.S. 898, 108 S.Ct. 233, 98
|
|
L.Ed.2d 192 (1987).
|
|
In reviewing Allen's motion to dismiss, we must determine
|
|
initially whether the government's conduct was " 'so grossly
|
|
shocking and so outrageous as to violate the universal sense of
|
|
justice.' " Id. at 1464 (quoting United States v. Ramirez, 710
|
|
F.2d 535, 539 (9th Cir.1983)). It was not.
|
|
Unsavory conduct alone will not cause the dismissal of an
|
|
indictment. United States v. Smith, 924 F.2d 889, 897 (9th
|
|
Cir.1991); Simpson, 813 F.2d at 1464.
|
|
[2] The government's consent to and participation in the
|
|
operation of a facility for the supply of chemicals used in the
|
|
manufacture of methamphetamine does not offend the universal sense
|
|
of justice. We must view the question "in light of the limited
|
|
range of law enforcement techniques available for investigating
|
|
drug manufacturing enterprises." United States v. Smith, 538 F.2d
|
|
1359, 1361 (9th Cir.1976); see also United States v. Russell, 411
|
|
U.S. 423, 432, 93 S.Ct. 1637, 1643, 36 L.Ed.2d 366 (1973)
|
|
(considering "practicable means of detection" of illicit drug
|
|
manufacture and concluding that infiltration and supply of drug
|
|
manufacturing rings are "recognized and permissible means of
|
|
investigation" that do not offend a universal sense of justice).
|
|
Manufacturers of methamphetamine might resort to hundreds of supply
|
|
houses in the area to obtain the required materials. Closing any
|
|
one of them would have little effect on a manufacturer's access to
|
|
others like them.
|
|
|
|
|