U.S. v. Gordon
| Decision Date | 22 September 1978 |
| Docket Number | No. 77-5831,77-5831 |
| Citation | 580 F.2d 827 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Louis I. GORDON, Eduardo Jose Garcia, Jeffrey Mark Berg, James M. Cowen, and Eric Theodore Lubov, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Alan I. Karten, Miami, Fla., for Gordon.
Robyn J. Hermann, Asst. Federal Public Defender, Miami, Fla., for Garcia.
Thomas F. Almon, Miami, Fla., for Cowen.
Corey E. Hoffman, South Miami, Fla. (Court-appointed), for Lubov and Berg.
Jack V. Eskenazi, U. S. Atty., Michael P. Sullivan, Ralph N. Person, Asst. U. S. Attys., Miami, Fla., for plaintiff-appellee.
Appeals from the United States District Court for the Southern District of Florida.
Before COLEMAN, GEE and HILL, Circuit Judges.
Berg, Lubov, Garcia, Cowen, and Gordon appeal convictions for violating the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 801 Et seq. The one-count indictment charged that they conspired to manufacture methaqualone, a schedule II non-narcotic controlled substance, in violation of 21 U.S.C. § 846 (conspiracy to violate 21 U.S.C. § 841) and 18 U.S.C. § 2 (aiding and abetting).
The defendants advance several grounds for reversal: (1) the affidavit for a search warrant alleged insufficient facts to sustain the magistrate's finding of probable cause; (2) the trial court erred in allowing the indictment to be amended without resubmitting it to the Grand Jury; (3) defendants' motions for judgment of acquittal should have been granted; (4) the defendants were denied due process by the refusal of the trial court to suppress the testimony of a government chemist and; (5) the delegation of authority to schedule, deschedule, and reschedule controlled substances from Congress to the Attorney General and thence to the Drug Enforcement Administration (DEA) is unconstitutional. We affirm.
On December 3, 1976, Sherwin Williams Chemical Company received an order for 750 pounds of anthranillic acid, subsequently confirmed by a written letter, dated December 6, 1976, signed by Berg, using the alias "Arnold Davis". The order for anthranillic acid was sent to Wally's Refinishing Company (also a fictitious name), located in an otherwise unoccupied warehouse in Miami.
On December 6, Berg, again using the Davis alias, purchased a cashier's check at the Florida National Bank at Coral Gables, payable to "Sherwin Williams Chemicals".
That same day, Berg, again using the Davis alias, sent a written order to MCB Manufacturing Chemists, confirming his previous order for 450 pounds of ortho-toluidine and 980 pounds of acetic anhydride. This order, too, was shipped to the fictitious Wally's Refinishing Company at the Miami warehouse address.
On January 3, 1977, two DEA agents made a "controlled delivery" of the Sherwin Williams order. The warehouse contained no tools, equipment, or furniture but did contain a large quantity of denatured alcohol and a box of caustic soda. Berg and Lubov were present, introducing themselves to the agents as "Arnie Davis" and "Joseph Walsh", respectively. Lubov, using his Walsh alias, signed the invoice. Although this chemical was supposed to be used for metal refinishing, Lubov told the agents that he had no idea how to use it in a metal refinishing process and inquired when the MCB shipment of "drugs" was due.
On January 4, Agent Mantyla, one of the two DEA agents that had made the January 3 delivery, delivered the MCB order. Berg, using his Davis alias, signed the invoice.
The next day Lubov was observed driving around one particular vicinity for fifteen or twenty minutes "up and down, U-turning, this sort of thing" and then stopped near the Air Mac Equipment Company, where he picked up an object that appeared to be a scuba tank, which he carried to the warehouse.
On January 6, Lubov, using his Walsh alias, placed an order with the Biscayne Chemical Company for some chemicals and laboratory equipment. Lubov used a fictitious address on this order.
Two DEA agents made a third delivery to the warehouse on February 10, completing the MCB order of ortho-toluidine. The warehouse remained empty with the exception of the chemicals previously delivered by the DEA agents plus a box marked "Biscayne Chemical Company". 1 This time Lubov and Cowen were present. Subsequent to the delivery, both defendants left the warehouse in separate cars, driving in different directions. A DEA agent followed Cowen to his residence in Coconut Grove. Lubov's car was already parked in front of Cowen's place.
On February 17, Cowen, Gordon and Garcia apparently transferred the chemicals and equipment from the warehouse to a house at 810 Capri Street, Coral Gables, rented by Cowen posing as "James Bloodworth". Cowen drove a U-Haul truck to the warehouse, followed by Gordon and Garcia in a car. The truck was backed into the warehouse. After thirty minutes they left the warehouse and drove to Capri Street. A DEA agent followed the defendants from the warehouse and noted that they drove in an evasive manner:
During this time, they would be traveling with the flow of traffic eastbound; suddenly the truck or the car would stop, pull to the shoulder, allow traffic to pass and pull back into the flow of traffic.
At other times, they would go into residential areas and circle the block three or four times; the truck going in one direction, the vehicle going in a separate direction.
This also included going down alleyways, making U-turns.
Upon their arrival at Capri Street Gordon and Garcia directed the truck into the garage. Cowen then began rolling barrels down a ramp while Gordon and Garcia balanced the barrels so that they would not fall off. The barrels were then placed in the garage. The windows of the garage had been painted over.
That afternoon Cowen and Gordon visited several commercial establishments. 2 They purchased buckets and plastic tubes at a hardware store.
At approximately 6:30 that evening Cowen returned the U-Haul truck to a service station. Garcia met Cowen at the service station and drove him back to Capri Street.
Maintaining surveillance of the defendants, the DEA agents that evening followed Cowen from his Coconut Grove residence to an apartment occupied by Berg and Lubov. Upon his arrival, Cowen knocked and was admitted. Gordon also was followed to a Miami Beach restaurant. The agent following Gordon noted that he was wearing a wig. Gordon and an unknown individual left in separate cars and were observed making U-turns and driving around blocks.
On the morning of February 18 Gordon was followed to Capri Street. He walked several houses past the Capri Street residence, turned around, and then entered the house. The agent following Gordon noted that he was looking in all directions the entire time.
Garcia left the Capri Street residence on two occasions that day. The agent following Garcia observed that he was constantly driving in an evasive manner.
On the evening of February 18, 1977, approximately a month and a half after the DEA surveillance began, DEA agents obtained and executed search warrants on the Capri Street and warehouse properties. The warehouse was completely empty. Garcia was present at the Capri Street residence. The only furniture in the house was a couch and a chair found in the living room. All of the windows were completely covered with blankets, sheets, covers, or paint. Chemicals and equipment were found, unpacked, in the bedroom and bathroom. No contraband, notes, or formulae were found. No chemical reactions were in progress.
The defendants submitted motions to suppress, contending that the affidavit for the search warrant did not contain information enough to establish probable cause. It is now argued that the trial court erred in denying the motions. We must disagree. Of course, "probable cause" means something more than "mere suspicion", Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). Probable cause requires the existence of facts " 'sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed" and the person to be arrested (or searched) committed it, Id.
A bright line cannot always be drawn between "mere suspicion" and probable cause. The distinction is more difficult when the suspect is in possession of materials which, in and of themselves, are not unlawful but which can be used for the accomplishment of an unlawful purpose. The impartial magistrate, however, is not required to focus with tunnel vision solely on possession but, obviously, may consider all relevant surrounding facts and circumstances such as the means by which a controlled substance may be manufactured and conduct reasonably indicating an intent to engage in unlawful activity. 3
The affidavit submitted in support of the search warrant was based primarily upon the direct personal observations of DEA agents. There was more than sufficient information in the affidavit upon which to conclude that the defendants were involved in something more than a mere innocent storing of chemicals. In addition to chemicals, the defendants procured laboratory equipment indicating that they intended to use the chemicals rather than store them. In ordering the chemicals and some of the laboratory equipment fictitious names and a fictitious address were used.
The DEA received information from Sherwin Williams Chemical Company that one of the defendants stated that the chemicals were intended for use in a refinishing process. Of course, use of these chemicals in a refinishing process would have been legal but additional observations indicated that the defendants did not intend to use these chemicals for that purpose. Sherwin Williams Chemical Company informed the DEA that they were unaware of a refinishing use for the chemicals ordered by the...
To continue reading
Request your trial
-
US v. Hovey
...not be controlled, the Attorney General shall not control the drug or other substance." 21 U.S.C. § 812(b); see United States v. Gordon, 580 F.2d 827, 838 (5th Cir.1978), cert. denied sub. nom., Garcia v. United States, 439 U.S. 1079, 99 S.Ct. 860, 59 L.Ed.2d 49 In subsection 811(c), Congre......
-
United States v. Coleman
..."means something more than mere suspicion." United States v. Froman , 355 F.3d 882, 889 (5th Cir. 2004) (quoting United States v. Gordon , 580 F.2d 827, 832–33 (5th Cir. 1978) ). "Probable cause requires the existence of facts sufficient in themselves to warrant a man of reasonable caution ......
-
US v. Costelon
...General directly determines the applicable penalty provision by classifying substances in particular schedules. United States v. Gordon, 580 F.2d 827, 838-40 (5th Cir.), cert. denied, 439 U.S. 1051, 99 S.Ct. 731, 58 L.Ed.2d 711 (1978). Moreover, the Supreme Court has determined that Congres......
-
U.S. v. Touby
...United States v. Barron, 594 F.2d 1345 (10th Cir.), cert. denied, 441 U.S. 951, 99 S.Ct. 2180, 60 L.Ed.2d 1056 (1979); United States v. Gordon, 580 F.2d 827 (5th Cir.), cert. denied, 439 U.S. 1051, 99 S.Ct. 731, 58 L.Ed.2d 711 (1978); United States v. Roya, 574 F.2d 386 (7th Cir.), cert. de......