509 F.2d 1211 (9th Cir. 1975), 74--1712, United States v. Martin

Docket Nº:74--1712, 74--1713.
Citation:509 F.2d 1211
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Kenneth MARTIN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. James E. RATHBUN, Defendant-Appellant.
Case Date:January 20, 1975
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1211

509 F.2d 1211 (9th Cir. 1975)

UNITED STATES of America, Plaintiff-Appellee,

v.

Kenneth MARTIN, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

James E. RATHBUN, Defendant-Appellant.

Nos. 74--1712, 74--1713.

United States Court of Appeals, Ninth Circuit

January 20, 1975

Certiorari Denied May 12, 1975.

See 95 S.Ct. 1958.

Page 1212

John W. Keker (argued), San Francisco, Cal., for defendants-appellants.

Chester G. Moore, Asst. U.S. Atty. (argued), San Francisco, Cal., for plaintiff-appellee.

Before DUNIWAY and CHOY, Circuit Judges, and SMITH, [*] District Judge.

OPINION

DUNIWAY, Circuit Judge.

Martin was convicted under separate counts charging manufacturing and possessing a controlled substance (metham-phetamine) with intent to distribute it, in violation of 21 U.S.C. § 841(a)(1). Rathbun was convicted of possession of heroin, in violation of 21 U.S.C. § 844. We affirm.

  1. Statement of Facts.

    On September 25, 1973, an employee of Central Scientific Co. ('CSC'), a scientific supply company in Santa Clara, California, about 40 miles from San Francisco, notified the San Francisco office of the Drug Enforcement Administration ('DEA') that a person identifying himself as Kenneth Martin and as a representative of San Francisco-based Nevada Pacific Specialities ('NPS'), using an NPS purchase order, personally placed an order for various articles of glassware and chemicals. 1 Items ordered by Martin included chemical glassware and substantial quantities of activated charcoal, acetone, isopropyl alcohol, and vacuum oil.

    The next day, DEA agents watched CSC and saw Martin sign in his own name and pay cash for the purchases, to which had been added a quantity of ether anhydrous. Martin and arrived driving a panel truck. The agents learned that the truck was registered to one O'Brian, who had also made purchases from CSC, using NPS purchase orders.

    After loading the items into the panel van, Martin did not head for San Francisco. Instead, he drove south, away from San Francisco. He was continually watched, and was seen making two Uturns and several brief stops, but without leaving the car, just before he reached his home in Cupertino. When Martin arrived at his home, he and his wife carried the contents of the van into the house. Shortly after, a red Toronado car arrived at the house.

    From about 5:00 P.M., the agents, who had obtained permission from the owner of adjoining premises to enter his yard, stationed themselves behind a fence immediately adjacent to the Martin property. They smelled ether and acetone, heard the running of water and clinking of glassware, saw Martin pouring liquids from one container to another, and saw five-gallon cans, several boxes on a table, and later a jug containing an orange liquid with a white precipitate.

    At about 7:45 P.M., Mrs. Martin left the house, drove off in a car, and was followed by two agents. Another agent approached the Martin house and knocked on the door. A man answered at a window and the agent asked the whereabouts of a fictitous person. The agent left and rejoined the agents in the neighbor's yard. The two agents watching Mrs. Martin also returned. Martin then left the house, walked up and down the street, and met Mrs. Martin in the driveway when she returned. The two then drove to a parking lot and parked, facing the traffic and with the car lights turned off. When Martin left the house, the odors of acetone and ether stopped being noticeable by the agents.

    Page 1213

    Later, the Martins returned to the house, the odors were again noticeable, and sounds of running water and clinking glassware were again heard.

    Rathbun had arrived at the house during the evening. About 11:00 P.M., the agents saw Martin and Rathbun removing some of the items seen in the house and placing them on the back seat and in the trunk of the Toronado, which was parked in the driveway. These included the jug with the precipitate. The two got into the car and drove away. Within a few minutes, the DEA agents stopped the car and arrested them both. A search of...

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