U.S. v. Shugart

• Decision Date: 14 July 1997
• Docket Number: No. 96-40508,96-40508
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ricky J. SHUGART, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 838

117 F.3d 838

UNITED STATES of America, Plaintiff-Appellee, v. Ricky J. SHUGART, Defendant-Appellant.

No. 96-40508.

United States Court of Appeals Fifth Circuit.

July 14, 1997.

Randall Lynn Fluke, Assistant U.S. Attorney, Sherman, TX, for Plaintiff-Appellee.

James W. Volberding, Tyler, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of Texas.

Before SMITH, BARKSDALE and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

The appellant, Ricky Joe Shugart, challenges his conviction and sentence for manufacturing methcathinone in violation of 21 U.S.C. § 841(a)(1) and possessing ephedrine with the intent to manufacture methcathinone in violation of 21 U.S.C. § 841(d)(1). We conclude that the good-faith exception to the exclusionary rule defeats Shugart's arguments that evidence of methcathinone production secured pursuant to search warrants was erroneously admitted into evidence. We also hold that evidence found on Shugart's person when he was arrested was properly admitted into evidence as fruits of a lawful search incident to an arrest. Moreover, we conclude that the district court did not abuse its discretion by admitting other challenged evidence or by declining to grant Shugart's motion for a new trial based on newly discovered evidence. Finally, we conclude that the district court committed no error in calculating Shugart's sentence. Accordingly, the judgment of the district court is affirmed in all respects.

I. Background

United States Drug Enforcement Agency ("DEA") agents began investigating the alleged narcotics activity of Shugart and his sister, Lori Ann Leach, when Agent Michael Keene received a tip that Shugart and Leach were involved in the illegal production of methcathinone. The tip was provided by a DEA agent in Wichita, Kansas, who told Agent Keene that a confidential informant ("CI") in Kansas told him that Shugart was in possession of a "N-Methcathinone laboratory." The CI also alleged that Shugart was ordering ephedrine, a substance needed to produce methcathinone, from Olympus Distributing Company ("Olympus") and T & M Distributing Company ("T & M"), and that Shugart occasionally directed Leach to order the ephedrine. ¹ The CI also stated that he had been on Shugart's and Leach's properties near Bonham, Texas, in the month preceding the tip, and had observed a methcathinone laboratory on Shugart's property, and other chemicals used to produce methcathinone on Leach's property.

Before taking further action, Agent Keene sought to verify the information provided by the CI. In this regard, Agent Keene contacted T & M and asked whether Shugart or Leach had ordered ephedrine. A representative of T & M told Agent Keene that Shugart and Leach had recently placed several large orders for ephedrine that were shipped to Bonham, Texas.

On November 8, 1994, a T & M representative phoned Agent Keene and informed him that Shugart had recently placed an order for 3,000 tablets of ephedrine to be sent to a post office box in Randolph, Texas. Agent Keene confirmed this information by contacting a postal inspector who stated that a package from T & M addressed to Shugart had arrived at the Randolph post office. The postal inspector also told Agent Keene that another package addressed to Shugart had arrived from Olympus. Both packages were mailed collect on delivery, requiring Shugart to pay for the packages before receiving them.

DEA agents and United States Postal Inspectors established surveillance of the Randolph post office. At approximately 10:00 a.m. on November 14, 1994, Shugart and a woman, later identified as his wife, arrived at the post office. Shugart entered the post office and paid for the package from Olympus. Shugart told a postal inspector that he had only enough money to pay for one of the packages and that he would return later for the package from T & M. Shugart then returned to the car, and the agents followed him and his wife to Leach's mobile home, located in a rural area near Bonham, Texas. Once there, Shugart exited the car and carried the package inside the mobile home. His wife, still followed by DEA agents, then drove to a grocery store in Bonham, Texas, where a DEA agent watched her purchase Red Devil Lye and Epsom Salt, which are also ingredients necessary to produce methcathinone. The agents continued to tail Shugart's wife on the return trip to Leach's mobile home.

While conducting this surveillance, Agent Keene called the CI in Kansas on a cellular phone. The CI stated that he had aided Shugart in manufacturing methcathinone on Shugart's property on two separate occasions in August 1994. The CI also told Agent Keene that he had observed methcathinone, ephedrine, and other chemicals used to produce methcathinone on Leach's property in August 1994.

Based on the DEA's surveillance and his conversation with the CI, Agent Keene decided to apply for warrants to search Shugart's and Leach's properties. At approximately 2:00 p.m. the same day, Agent Keene hastily drafted an affidavit incorporating the above facts and presented it to a magistrate judge in Sherman, Texas.

Before presenting the applications and affidavit for the search warrants to the magistrate, however, Agent Keene noticed that the applications and warrant forms contained several defects. Apparently, the agent who prepared the documents utilized boilerplate forms that had previously been used to acquire a warrant authorizing a search for evidence of possession with the intent to distribute cocaine. Both the applications for the search warrants and the warrants themselves referred to "cocaine" rather than "methcathinone."

Agent Keene brought the mistakes to the magistrate's attention, and the magistrate instructed him to mark through the references to "cocaine," insert "methcathinone," and initial the hand-written changes. Agent Keene complied with these instructions, and the magistrate signed the warrants containing Agent Keene's interlineations.

Agent Keene and the Assistant United States Attorney assigned to the case failed to detect the same mistake on a form entitled "Application and Affidavit for Search Warrant," which served as a cover sheet for Agent Keene's affidavit in support of the warrants. On that document, the items to be searched for and seized were described as "evidence, instrumentalities or fruits of the crime of conspiracy to possess or distribute cocaine."

After the warrants were issued, Agent Keene returned to Bonham, Texas, and briefed the DEA raid team that was to execute the warrants. The agents discussed the facts leading to the acquisition of the search warrants, as well as the fact that Shugart had a previous weapons conviction. The agents determined that they would raid Leach's mobile home and an unattached, open-faced garage adjacent to the mobile home simultaneously because agents had observed a person in the garage and were concerned that he or she might pose a safety risk to the agents.

The agents who raided the garage found Shugart standing near the center of the structure in close proximity to a work bench, which contained glass laboratory equipment, bottles of various substances, and several electric hand mixers, one of which was gyrating intermittently as if there was a short in its power source. DEA agent Martin Suell, the first agent to enter the garage, identified himself and commanded Shugart to lie on the floor. After Shugart complied with this order, he was handcuffed by another agent. The agents frisked Shugart and found numerous "plastic baggies" in his coat pocket, which were ultimately seized. The agent then read Shugart his Miranda rights. Chemists were called to Leach's property, and they and the DEA agents processed the scene. Agents subsequently seized several containers containing liquid substances, measuring cups, funnels, an empty ephedrine bottle, and various other substances and laboratory equipment from the garage.

At some point during these events, DEA agents transported Shugart to his nearby mobile home and executed the second search warrant issued by the magistrate. Assorted chemistry magazines, literature on clandestine labs, and a letter were found and seized from Shugart's property.

Although Shugart was readily available, DEA agents asked Shugart's wife if she would accompany them to the Randolph post office and sign for the the package of ephedrine sent from T & M to her husband. Shugart's wife agreed, and with her help, agents seized the package from the post office. Subsequently, Shugart's wife signed a consent-to-search form authorizing the agents to open the package. When the agents opened the package, they found 3,000 ephedrine tablets. ²

A federal grand jury returned a three-count indictment against Shugart. Count one charged him with conspiracy to manufacture methcathinone in violation of 21 U.S.C. § 846. Count two charged Shugart with manufacturing methcathinone in violation of 21 U.S.C. § 841(a)(1). Finally, count three charged Shugart with possession of a listed chemical, ephedrine, with intent to manufacture methcathinone in violation of 21 U.S.C. § 841(d)(1).

A jury trial was conducted on May 16, 1995. ³ The jury found Shugart guilty of manufacturing methcathinone. In addition, the jury found Shugart guilty of the necessary included offense of attempting to manufacture methcathinone. Finally, the jury found Shugart guilty of possession of ephedrine with the intent to manufacture methcathinone.

Shugart's presentence report ("PSI") recommended a base offense level of 26 under the applicable Sentencing Guidelines. This recommendation was based on a probation officer's estimate of the amount of methcathinone that Shugart attempted to produce. To make this calculation, the probation officer estimated the amount of methcathinone that could be produced from the amount of ephedrine that Shugart ordered, assuming a 50% yield.

The district court rejected the 50%...