U.S. v. Combs

• Decision Date: 05 August 2004
• Docket Number: No. 02-50485.,02-50485.
• Citation: 379 F.3d 564
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dale Roy COMBS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 564

379 F.3d 564

UNITED STATES of America, Plaintiff-Appellee, v. Dale Roy COMBS, Defendant-Appellant.

No. 02-50485.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 5, 2004.

Filed August 5, 2004.

Carol K. Lysaght, Santa Monica, CA, for the defendant-appellant.

Debra Yang, United States Attorney, Steven D. Clymer, Special Assistant United States Attorney, Chief of Criminal Division, Cheryl O'Connor Murphy, Assistant United States Attorney, Narcotics Section, Los Angeles, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Central District of California; Nora M. Manella, District Judge, Presiding. D.C. No. CR-01-00902-NMM.

Before: REINHARDT, THOMPSON, and KIM WARDLAW, Circuit Judges.

WARDLAW, Circuit Judge:

Dale Roy Combs appeals from the district court's judgment of conviction and sentence imposed after a jury found him guilty as charged in a two-count indictment for manufacturing and distributing more than 500 grams of a mixture or substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. § 841(a)(1). Because we conclude that the transfer of trace, unuseable amounts of methamphetamine for the purpose of disposal is insufficient to support a conviction for "distribution" under Section 841(a)(1), and that improper prosecutorial questioning and vouching prejudiced Combs's right to a fair trial, we reverse, vacate, and remand for a new trial on solely the manufacturing count.

I Background

Combs owned an automotive machine shop occupying Bay 22 in an industrial compound in Lancaster, California. In late 1998, his brother, David, a worker at the shop, was arrested, convicted, and imprisoned for manufacturing methamphetamine. Earl Floyd performed odd jobs for Combs. In May 2000, Floyd was arrested for possession of crack cocaine. Angered because Combs refused to post bail for him, and in exchange for release on his own recognizance, Floyd offered to inform on Combs. The Drug Enforcement Administration ("DEA") enlisted Floyd to work as an informant upon Combs in a drug investigation.

Early in the summer of 2000, Floyd sold Combs two 55-gallon barrels, each half-full of oil, that he had hauled away from an automotive wholesale company. Combs kept the barrels at his machine shop. On August 2, 2000, Floyd drove his truck, which police had searched and equipped with a hidden recording device, to Combs's shop, where Combs offered Floyd $100 to haul away the two barrels, which were now completely full of oil and "some other things." Combs was recorded instructing Floyd to wipe the barrels clean of fingerprints before disposing of them. Floyd loaded the barrels onto his truck and delivered them to law enforcement officials. An inspection team took numerous samples of the multi-layered liquid from various parts of the barrels; chemical analysis of these samples revealed trace amounts of methamphetamine in the first barrel and no methamphetamine in the second barrel. The first barrel also contained several objects consistent with the manufacture of methamphetamine, including plastic tubing and broken glassware. The inspection team did not preserve this evidence for trial. Kent Bailey, the DEA special agent leading the Combs investigation, was present during this inspection.

Although the transfer of the barrels to Floyd on August 2, 2000 would become the basis for the two-count indictment, Combs was not arrested until more than one year later, on August 21, 2001. The agents who searched Combs's machine shop found no evidence of methamphetamine possession or manufacture. Combs believed he had been arrested for illegally dumping oil.

Combs was taken to Kern County Jail where he was confined in a holding cell from August 22 to August 30 with Robert Williams, also arrested August 21. Williams later entered into a plea agreement that required him to testify at Combs's trial in exchange for possible leniency in his own unrelated methamphetamine case, carrying a minimum 10 years to life possible sentence. Williams testified that Combs told him many details of his case, including that he hired a black man to haul away barrels, one of which contained "a hose and some waste from a prior methamphetamine cook." Williams also asserted that Combs said he manufactured methamphetamine, sometimes cooked 15 pounds of methamphetamine in a week, and his brother David would take responsibility for the barrels if necessary. At trial, Combs testified that he never spoke directly with Williams.

Combs agreed to discuss the case with agent Bailey and his fellow agent Mark Cory. It is undisputed that Combs admitted the following facts during their unrecorded post-arrest interview: (1) he paid Floyd to haul away the two 55-gallon barrels on August 2, 2000; (2) he knew one of the barrels contained a mixture of oil and methamphetamine waste; (3) he told Floyd to wipe the barrels clean of fingerprints; (4) he previously had paid Floyd to dispose of a cardboard box that he believed contained methamphetamine waste materials; (5) he has purchased hypophosphorous acid; (6) he knew a person who sold pseudoephedrine, and he could buy pseudoephedrine from this source; (7) he heard rumors about a surveillance camera monitoring his business; and (8) he knew technical specifications about aspects of the methamphetamine manufacturing process. Combs was then charged with manufacturing and distributing more than 500 grams of a substance containing methamphetamine on or about August 2, 2000, and the case went to trial.

Agent Bailey testified that Combs admitted to manufacturing methamphetamine. Combs last manufactured the drug at his machine shop in early August 2001, approximately two weeks before his arrest. Agent Cory had not been present when Combs made these admissions to agent Bailey; Combs testified at trial that he did not make them.

Combs testified that his brother David had been previously convicted and imprisoned on methamphetamine manufacturing charges, and that the drug-related waste materials in the barrel and cardboard box came from David's methamphetamine laboratory. After David's arrest, Combs sent employees to David's home to bring back to the machine shop various methamphetamine-related materials, which sat in the barrel and box for several years until Combs paid Floyd to get rid of them. Combs admitted discussing technicalities of methamphetamine manufacture with agent Bailey, but testified that he had only heard or read about such methods in books or on the Internet, and that he only became interested in the subject after David's arrest. Combs testified that he had never manufactured methamphetamine, and had never used illegal drugs.

During Combs's cross-examination by the AUSA, the district court judge intervened:

[AUSA:]

Q: You told Special Agents Bailey and Cory that you last manufactured methamphetamine on or about August 5; isn't that correct?

A: I did not.

Q: So Special Agent Bailey is making that up?

A: I told you what happened. He said. I didn't say. He answered. I ended the interview.

Q: So you are saying that Special Agent Bailey is lying in his testimony?

A: Yes. Detective Cory was not in the room at this time.

Q: That wasn't my question. My question was are you saying that Special Agent Bailey was lying when he testified earlier?

A: I am saying what is written on that paper is not what I said.

THE COURT: Don't worry about what is written on the paper. We are not interested in that. She is asking you about Agent Bailey's testimony on the subject.

A: His testimony is — I never heard it until the other day.

THE COURT: Well, that's what she's asking you about.

A: Yes, I would say that he lied.

The prosecutor argued in closing:

The defendant claims Special Agent Bailey is lying. Ask yourselves, ladies and gentlemen, who has the motive to lie here, the defendant or Special Agent Bailey — Special Agent Bailey will get up and go to work on Monday as he has done for the past ten years regardless of the outcome of this case — or the defendant who is facing two felony charges?

Combs's counsel argued in response:

[Law enforcement officials] believed at that time [i.e., August 21, 2001] that they were going to find a clandestine methamphetamine lab in [Combs's machine shop], and when they didn't they were — they had to have tombstones in their eyes, tomb-stones in their eyes.

....

The agents here, their job isn't on the line. No, they aren't going to get fired. You don't get terminated, but you don't keep getting promotions when you go into homes or business establishments after an 18-month investigation and you find nothing. That's not the way to make friends and influence your superiors in the private sector or the government sector.

The prosecutor argued in rebuttal:

Most of all, ladies and gentlemen, you have to believe that Special Agent Kent Bailey is a liar. If you believe the defendant's version of events, you have to believe that Special Agent Kent Bailey walked up to that witness stand, swore to tell you the truth, and perjured himself.

You have to believe that Special Agent Kent Bailey flushed his ten-year career down the toilet. For what? For a nice old grandfatherly man? Why would he do that? That makes no sense. Special Agent Bailey may not get fired for participating in a search warrant where there was no meth lab, but you can be darn sure he would get fired for perjuring himself.

Combs's counsel did not object either to the questioning or closing argument regarding Agent Bailey's truthfulness. Nor did the court instruct the jury as to consideration of either the testimony or argument.

On April 12, 2002, after deliberating for half a day, the jury sent out a note stating that it was unable to reach a verdict on the manufacturing count. After further deliberation, on April 15, 2002, the jury returned a special verdict finding Combs guilty on both counts of the indictment. The district court denied...