U.S. v. Decker

• Decision Date: 21 March 1994
• Docket Number: No. 93-2375,93-2375
• Citation: 19 F.3d 287
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David John DECKER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 287

19 F.3d 287

UNITED STATES of America, Plaintiff-Appellee, v. David John DECKER, Defendant-Appellant.

No. 93-2375.

United States Court of Appeals, Sixth Circuit.

Argued March 1, 1994.

Decided March 21, 1994.

Richard S. Murray, Asst. U.S. Attorney (argued and briefed), Grand Rapids, MI, for plaintiff-appellee.

Jeffrey O'Hara (argued and briefed), Grand Rapids, MI, for defendant-appellant.

Before: KENNEDY and GUY, Circuit Judges; and CONTIE, Senior Circuit Judge.

PER CURIAM.

Defendant, David Decker, was convicted of conspiracy to manufacture MDA, ¹ a controlled substance. One item of evidence introduced against defendant during trial was found in an inventory search of his vehicle. Defendant argues that this search was illegal and that this item of evidence accordingly should have been suppressed. ²

Defendant also argues that the trial judge erred when he responded to a jury inquiry by telling the jury that defendant could be found guilty of this conspiracy if he knew its purpose was to illegally manufacture a controlled substance, even if he did not know the substance was MDA.

After completing our review, we find no error requiring reversal, and affirm.

I.

In the fall of 1992, defendant agreed to help Dr. Tony Scalici, a family practice physician, manufacture MDA. Dr. Scalici conceived the idea for this illicit venture after a trip to California, during which he obtained a book entitled Secrets of Methamphetamine Manufacture. The book details a process for amphetamine manufacture using a method called the Ritter reaction and describes a modification of the Ritter technique that will produce MDA.

Unfortunately for both Scalici and Decker, Scalici tried to enlist the support of Dr. James Byers, a physician with whom he practiced. Byers, although feigning interest, immediately contacted the FBI. From this point forward, many of the meetings and discussions among the participants were tape recorded by Byers and surveilled by the FBI.

One of Decker's contributions to this plan was to provide the manufacture location, an unused summer cottage belonging to his father. On November 11, 1992, Byers accompanied Scalici in Scalici's car to the cottage, followed by Decker in his own car. The cottage already had been stocked with most of the necessary precursor chemicals and equipment. Scalici was bringing the remaining necessary chemicals and Decker stopped en route to pick up two bags of ice to be used to dissipate the heat generated by the Ritter reaction.

The FBI, alerted by Byers, was waiting for the trio to arrive. Shortly after the trio's arrival, the agents arrested Scalici and Decker, searched the cottage pursuant to a search warrant, and seized both vehicles. The vehicles, although included in the search warrant, were not searched at this time but instead were taken to the FBI garage and impounded. The FBI agent who impounded the vehicles said his intention was to conduct an inventory search of both vehicles and institute forfeiture proceedings.

The agent testified at trial that a very busy work schedule kept him from conducting the inventory search until November 18, 1992. By that date, the authority to search provided in the search warrant had expired. In Scalici's Cadillac, the agent found several items of evidentiary value, including a beeper, an address book, pyrex pitchers, lye, and a sales receipt. In Decker's car, the agent found some horse steroids ³ and ice bags, which were empty but wet.

Scalici and Decker were indicted shortly after their arrest, and, prior to trial, each of them filed a motion to suppress the evidence seized in the inventory search. Decker also joined in Scalici's motion relative to the search of Scalici's Cadillac. After an evidentiary hearing, both motions were denied; the court concluded that the items in question were found pursuant to a valid inventory search.

Dr. Scalici was convicted at trial, but the jury was unable to reach a unanimous verdict as to Decker. Decker was tried again, on a superseding indictment, and this time was found guilty of conspiracy. ⁴ During jury deliberation, the jury sent out the following note:

There is some confusion as to the contents of the jury instructions. Specifically in the description of conspiracy, Page 26, it is stated that first two or more persons conspired to commit the crime of manufacturing MDA. Is it vital that the defendant knew which specific drug was being manufactured, even if the defendant was unaware that it was illegal?

The trial judge, after consulting with counsel but over the objection of defense counsel, responded:

In this particular case, it is not necessary that the defendant knew specifically that the alleged conspiracy involved the attempted manufacture of MDA as long as the defendants knew, one or more of these defendants knew that--or I should say each defendant knew that what was being attempted to be manufactured was a controlled, illegal substance or an illegal controlled substance.

So, to summarize, it is not necessary that the defendants knew specifically that the product to be manufactured was MDA as long as--if they knew that what was attempted to be manufactured was an illegal controlled substance.

The jury found Decker guilty of conspiracy.

II.

Although Decker joined in Scalici's motion challenging the search of Scalici's auto, we find that, since Decker had no expectation of privacy or property interest in Scalici's auto, he has no standing to challenge its search.

As to Decker's car, we find that the district judge properly denied the motion to suppress, and, even if the motion were improperly denied, we find the admission into evidence of the two empty ice bags was harmless as a matter of law. This latter conclusion is bottomed on the other significant evidence introduced against Decker and the relatively inconsequential nature of the two empty ice bags. Through Dr. Byers' testimony, the jury learned that Decker had agreed to bring ice to the house. If the testimony of Dr. Byers was credited by the jury, this alone was enough to support the conspiracy conviction.

Despite the fact that the car Decker was driving belonged to his wife, ⁵ the government concedes Decker's standing relative to this auto. We believe the search of this auto can be justified on two grounds, only one of which was relied upon by the trial judge.

The trial judge found this to be a valid inventory search notwithstanding the fact that a week elapsed between the initial impoundment and the search. The Supreme Court long ago established that a valid inventory search conducted without a warrant does not violate the Fourth Amendment. In discussing inventory searches, the Court stated in South Dakota v. Opperman, 428 U.S. 364, 372, 96 S.Ct. 3092, 3098, 49 L.Ed.2d 1000 (1976):

The decisions of this Court point unmistakably to the conclusion reached by both federal and state courts that inventories pursuant to standard police procedures are reasonable. In the first such case, Mr. Justice Black made plain the nature of the inquiry before us:

"But the question here is not whether the search was authorized by state law. The question is rather whether the search was reasonable under the Fourth Amendment."

The Court in Opperman went on to state in language more specific to the instant case:

In applying the reasonableness standard adopted by the Framers, this Court has consistently sustained police intrusions into automobiles impounded or otherwise in lawful police custody where the process is aimed at securing or protecting the car and its contents. In Cooper v. California [386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967) ], ...