558 F.2d 1231 (6th Cir. 1977), 75-2354, United States v. Grunsfeld

Docket Nº:75-2354 to 75-2361.
Citation:558 F.2d 1231
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Ronald GRUNSFELD, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Donald Lee INGLE, John Paul Bommarito, Gerald Alfred Phillips, Lawrence Williamson, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Gilbert John DeMEGLIO, Defendant-Appellant. UNITED STATES
Case Date:June 10, 1977
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 1231

558 F.2d 1231 (6th Cir. 1977)

UNITED STATES of America, Plaintiff-Appellee,

v.

Ronald GRUNSFELD, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Donald Lee INGLE, John Paul Bommarito, Gerald Alfred

Phillips, Lawrence Williamson, Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellee,

v.

Gilbert John DeMEGLIO, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Lawrence PARMENTIER, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

James Max ELIASON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Thomas Anthony FLOWERS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Richard FLOWERS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Dennis ESTES, Defendant-Appellant.

Nos. 75-2354 to 75-2361.

United States Court of Appeals, Sixth Circuit

June 10, 1977

Argued June 9, 1976.

Rehearing Denied July 19, 1977.

Certiorari Denid Oct. 3, 1977.

See 98 S.Ct. 219

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[Copyrighted Material Omitted]

Page 1233

Martin I. Reisig, Detroit, Mich. (Court-appointed CJA), for defendant-appellant in No. 75-2354.

Frederick S. Van Tiem, Asst. U. S. Atty., Detroit, Mich., Reuben H. Wallace, Jr., T. George Gilinsky, Washington, D. C., Richard R. Romero, Washington, D. C., for plaintiff-appellee.

Richard G. Chosid, West Bloomfield, Mich., for defendants-appellants in No. 75-2355.

George E. Woods, Woods, Chase & Huetteman, Detroit, Mich., for defendant-appellant in No. 75-2356.

Joseph Shulman, Detroit, Mich., for defendant-appellant in No. 75-2357.

Edward Wishnow, Southfield, Mich. (Court-appointed CJA), for defendant-appellant in No. 75-2358.

Irving Tukel, Lieberman & Tukel, P. C., Southfield, Mich., for defendant-appellant in No. 75-2359.

Michael S. Friedman, Lustig & Friedman, Southfield, Mich. (Court-appointed CJA), Richard F. Flowers, for defendant-appellant in No. 75-2360.

Louis Lan, Southfield, Mich., (Court-appointed CJA), for defendant-appellant in No. 75-2361.

Before PHILLIPS, Chief Judge and WEICK and ENGEL, Circuit Judges.

PER CURIAM.

Appellants herein are eleven of twenty-five defendants who, with certain unindicted co-conspirators, were charged with a conspiracy to manufacture, distribute and possess with intent to distribute phencyclidine (PCP), a Schedule III controlled substance. 21 U.S.C. §§ 841(a)(1), 846. All eleven appellants were convicted following a jury trial in the United States District Court for the Eastern District of Michigan. In addition, appellant Richard Flowers was convicted of traveling in interstate commerce to promote the manufacture and distribution of phencyclidine, 18 U.S.C. § 1952, 21 U.S.C. § 841, and appellant James Eliason was convicted of four counts of possession of phencyclidine with intent to distribute. 21 U.S.C. § 841(a)(1).

STATEMENT OF FACTS

The conspiracy count of the indictment charged the named defendants with conspiring between April 1972 and April 1974 to manufacture and distribute phencyclidine in various locations within the State of Michigan. The principal conspirators were appellant Richard Flowers and one Charles Bert, who was the government's chief witness at the trial, having earlier pleaded guilty to the conspiracy count.

After first discussing the venture in April 1972, Bert and Richard Flowers determined the latter would go to Denver and obtain the materials needed for the manufacture of the drug. Accordingly, Flowers drove to Denver, picked up the materials with money provided by Bert, and then returned with them to Detroit. Seeking additional chemicals and lab equipment, Flowers and Dennis Estes went to Denver in June 1972, returning to Detroit with the materials in a van furnished by Estes. For this assistance Estes was paid $500 and promised a preferred price on the phencyclidine to be produced. In Detroit the materials were stored in the basement storeroom of an apartment occupied by Lawrence Parmentier, and thereafter the materials were transported to a cabin at Houghton Lake, Michigan. By the summer of 1972, Richard Flowers and a chemist, Nelson Rudd, had set up a lab at Houghton Lake and were producing phencyclidine powder, under an

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agreement that Richard Flowers and Rudd would manufacture the drug while Bert would market it, and each would receive one-third of the profit. Appellants Gilbert DeMeglio and Estes and two others were to participate in the distribution of the drug.

In late 1972 Richard Flowers and Bert moved the Houghton Lake lab to a farm in Kinde, Michigan, and decided to buy a machine which would process the phencyclidine powder into tablet form, thereby making it more marketable. Accordingly, they found such a machine at the residence of appellant Lawrence Williamson, who sold it to them for $8,000 after first demonstrating its working condition and advising them how to use powdered milk in order to "cut" and form the tablets. The machine itself was taken to the residence of Richard Flowers' brother, Thomas Flowers, on North Blair Street in Royal Oak, Michigan, where it was set up and used to produce the tablets by November of 1972. As rent, Thomas Flowers was paid $500 per 10,000 tablets produced.

The marketing of the tablets processed at the North Blair Street residence was done through Bert, who had distributors including appellants DeMeglio and Estes. Parmentier assisted in the distribution in many ways including storing the powder and tablets at his residence and assisting Bert in the collection of the money from the sale of the drug.

In late spring of 1973, Bert approached appellant Donald Ingle for the purpose of obtaining additional chemicals for production of the drug. That summer he also expressed an interest in buying a second tablet-making machine which Ingle said would cost around $6,500. Ingle then took Bert to appellant John Bommarito's address in Redford, Michigan, and the latter then took them to another residence on Rouge Court where the tableting machine was located. This was the residence of appellant Gerald Phillips who was later described by Bommarito as his business partner. These negotiations ultimately resulted in the sale of a tableting machine from Bommarito to Bert through Ingle as an intermediary. This second machine was stored in the garage of Parmentier's residence on Buckingham Street in Warren, Michigan, with an understanding that Parmentier was to receive $500 per 100,000 tablets produced there. This machine was tested by running tablets of powdered milk but was never put into operation to make phencyclidine tablets.

Meanwhile, in the fall of 1972 Bert had met appellant Ronald Grunsfeld, a chemist, and in November of 1973, obtained through him lab equipment and chemicals. Grunsfeld had received $1,000 to purchase the material and $2,500 as a "commission". The materials were picked up by Bert at Grunsfeld's home in Dover, New Hampshire, and with the latter's help, loaded into a U-Haul trailer and returned to Michigan. The next month Grunsfeld delivered to Bert in Detroit a shipment of chemicals and lab equipment which he had ordered the previous month. Bert placed three or four such orders with Grunsfeld.

Using primarily the materials supplied by Grunsfeld, Bert set up a third lab in December, 1973 in a residence on Ferguson Street in Detroit. The Ferguson lab began production of powder that month and continued to operate until February 26, 1974. Some of the Ferguson powder was sold to the appellant James Eliason and another distributor, but most of it was processed into tablet form at the North Blair Street residence and sold from there to distributors. In November and December 1973, Richard Flowers became a silent partner in this operation as well, under an agreement whereby he was to receive 20% of the profits.

In January 1974 Bert flew to Chicago for the purpose of selling and distributing the phencyclidine powder and tablets processed at the North Blair Street residence. He met Eliason in Elgin, Illinois, making a sale to him on January 4 and 5. On January 8 Eliason made sales to two undercover agents of the Drug Enforcement Administration. Eliason boasted to the agents that his organization could make 1,000,000 tablets in ten hours and that they had sold 5,000,000 the previous summer.

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Bert's participation in the conspiracy came quickly to an end on February 27 when he and several of his distributors were arrested while in the process of selling some phencyclidine powder. Thereafter a search warrant was executed on February 28, 1974 at the Ferguson lab, producing large quantities of the drug, chemical ingredients and lab equipment. Another warrant was carried out at Parmentier's residence on Buckingham Street, resulting in the seizure of the tableting machine there. On April 12, 1974, warrants were executed at the Kinde laboratory and at the North Blair Street residence, yielding further equipment, chemical ingredients and the other tableting machine.

I. SUFFICIENCY OF EVIDENCE

Of the eleven defendants, all but Richard Flowers, Thomas Flowers and Lawrence Parmentier claim that the evidence was insufficient to convict them of conspiracy.

A. BUYERS

A claim common to DeMeglio, Eliason and Estes is that while there was proof they purchased PCP from the manufacturers, this alone does not render them guilty of conspiracy. In this respect they rely upon a number of cases in which it is generally held that a buyer-seller relationship is not alone sufficient to tie a buyer to a conspiracy. See e. g., United States v. Sperling, 506 F.2d 1323, 1342 (2d Cir. 1974), cert. denied, 420 U.S. 962, 95 S.Ct. 1351, 43 L.Ed.2d 439, 421 U.S. 949, 95 S.Ct. 1682, 44 L.Ed.2d 103 (1975); United States v. Torres, 503 F.2d 1120, 1123-24 (2d Cir. 1974); United States v. Bostic, 480...

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