667 F.2d 1311 (9th Cir. 1982), 80-1736, United States v. Brock

Docket Nº:80-1736, 80-1737.
Citation:667 F.2d 1311
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Sammy Brice BROCK, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Roger Lee BARD, Defendant-Appellant.
Case Date:February 18, 1982
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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667 F.2d 1311 (9th Cir. 1982)

UNITED STATES of America, Plaintiff-Appellee,


Sammy Brice BROCK, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,


Roger Lee BARD, Defendant-Appellant.

Nos. 80-1736, 80-1737.

United States Court of Appeals, Ninth Circuit

February 18, 1982

Argued and Submitted June 9, 1981.

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[Copyrighted Material Omitted]

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James S. Coon, Portland, Or., for Brock.

John S. Ransom, Portland, Or., for Bard.

James McLaughlin, Asst. U. S. Atty., Portland, Or., for U. S.

Appeal from the United States District Court for the District of Oregon.

Before ADAMS [*], SNEED and FLETCHER, Circuit Judges.

SNEED, Circuit Judge:

Appellants, Brock and Bard, along with codefendants Bernard, Childress, and Cochran, were charged by indictment on May 24, 1978 in the District of Oregon with conspiracy to possess with intent to manufacture and distribute methamphetamine, a controlled substance, in violation of 21 U.S.C. §§ 812, 841(a)(1), and 846 (Count I), manufacture of methamphetamine, in violation of 21 U.S.C. §§ 812 and 841(a)(1) (Count II), and possession with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 812 and 841(a)(1) (Count III). Brock and Bard were convicted in a jury trial of Counts I and II and acquitted of Count III. Both were sentenced to three year prison terms and five year probation terms to run concurrently with the prison terms. 1 We affirm the convictions.



The facts relevant to this appeal have been revealed to this court in previous appeals and appear in two previous opinions of this court. See United States v. Bernard,

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607 F.2d 1257 (9th Cir. 1979), revised, 623 F.2d 551, 553-54 (9th Cir. 1980) (Bernard I ); United States v. Bernard, 625 F.2d 854, 856 (9th Cir. 1980) (Bernard II ). Nonetheless, the interests of convenience and coherence will be served by again setting them forth.

In December 1977 Timothy Boehm of Physicians & Surgeons Supply Co. in Spokane, Washington, received a telephone order from Bernard for phenyl-2-propanone, methylamine, and other chemicals. When placing the order Bernard claimed he was associated with a fertilizer company. Because the chemicals are also precurser chemicals for the manufacture of amphetamines, Boehm contacted the Drug Enforcement Agency (DEA).

Bernard picked up the chemicals on December 22, 1977. DEA agents, under the direction of Michael E. Fredericks, observed the pickup and instituted surveillance of Bernard. Bernard proceeded by car with another passenger through downtown Spokane and out of the city. Bernard took a circuitous route to Ridgefield, Washington and then toward Odessa, Washington. It appeared to Fredericks that the surveillance had been detected. Thereafter, he terminated it.

Bernard again contacted Boehm in January 1978 and placed a second order, this time for nine kilograms of methylamine. When the chemicals arrived in March, Fredericks picked them up and took them to the Spokane office of the DEA where they were placed in a specially prepared canister that was fitted with a false bottom beneath which an electronic transmitter (beeper) had been placed. Bernard subsequently called Boehm and requested that the chemicals be delivered to the Garrett Freight Line Depot in Lewiston, Idaho. Fredericks then took the canister to the Garrett Depot in Lewiston, had the necessary paperwork prepared to conceal the intercession of the DEA, and resumed surveillance.

On March 22, 1978 Bernard and another passenger appeared at the Garrett Depot in the same car that had been used to pick up the first shipment in December 1977. They entered the depot, obtained the canister, and placed it in their car. Fredericks began both visual and electronic surveillance of the vehicle; however, all contact was lost near Clarkston, Washington. Fredericks then proceeded to Walla Walla, Washington, the suspected destination of the canister, and conducted further electronic surveillance, but without success. The beeper was next picked up on the evening of March 23 coming from a home on Tenth Street in Clarkston. The beeper continued transmitting from the Clarkston location until at least through the afternoon of March 24.

When Fredericks next checked for the transmission on March 27, it was no longer at the Clarkston location. The beeper was finally located through aerial surveillance in Meacham, Oregon on March 28. Ground surveillance revealed that the beeper was in a cabin in Meacham. The cabin was known to have been used by Bernard in the past, and it was the residence of appellants Brock and Bard. Electronic surveillance of the Meacham cabin was maintained while Fredericks returned to Spokane to coordinate efforts between the Eastern District of Washington and the District of Oregon to obtain a warrant to search the cabin. On March 31 a search warrant was obtained based on Fredericks' affidavit. However, the warrant was not executed at that time.

Bernard placed a third order with Boehm in early April, this time for phenyl-2-propanone, but later called to say Childress would be picking it up. On April 6 Childress appeared and picked up the order. Bard had accompanied Childress to the pickup by private plane and taxi, and they both returned to the plane with the chemicals and then flew to Hermiston, Oregon.

On April 7 surveillance in Hermiston revealed a meeting of vehicles and a motor home, which then proceeded to Hat Rock State Park, arriving at approximately 1:30 p. m. The convoy parked in a secluded area near a river. Visual surveillance was maintained throughout the afternoon. An agent smelled chemicals "cooking." Another observed Brock dash out of the motor home

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gasping for air, as if choking on fumes. Fredericks arrived at 6:50 p. m. and, after talking with the agents on the scene, decided to search the motor home at approximately 7:00 p. m. The agents ordered all of the occupants out of the motor home and placed them under arrest. Brock, Bard, Bernard, Childress, and Cochran were found in the motor home. Agents then entered the motor home to see if any other people were inside, to turn off any cooking apparatus, and to inventory its contents. They found a methamphetamine laboratory behind a drawn curtain at the back of the motor home.

The laboratory was then packed up for transport. The motor home was driven to Hermiston where agents searched it pursuant to a warrant the following day. The search warrant previously obtained for the Meacham cabin was also executed on April 8.



Appellants raise seven issues on appeal, each of which we will address.

1. Introduction of Coconspirator Statements and Acts

Appellants first contend that the district court erred by admitting the out-of-court statements and acts of their alleged coconspirator Bernard. They contend that they were prejudiced because, while the statements and activities of Bernard clearly indicated that he was engaged in the manufacture of methamphetamines, there was no evidence linking them to the activities of Bernard other than their occupancy of the Meacham cabin.

Statements of a coconspirator made during the course and in furtherance of a conspiracy are not hearsay under the Federal Rules of Evidence and are admissible against another conspirator. Fed.R.Evid. 801(d)(2)(E); United States v. Fielding, 645 F.2d 719, 725 (9th Cir. 1981); United States v. Weiner, 578 F.2d 757, 768-69 (9th Cir.) (per curiam), cert. denied, 439 U.S. 981, 99 S.Ct. 568, 58 L.Ed.2d 651 (1978). A prerequisite to admission under Rule 801(d)(2)(E), however, is that there must be independent proof of the conspiracy and of the defendant's connection to the conspiracy. United States v. Fielding, 645 F.2d at 725; United States v. Weiner, 578 F.2d at 768-69.

Here, there was clearly sufficient independent proof of both the existence of the conspiracy and of the appellants' connection to it. The canister, which was ordered by Bernard and in which the beeper was placed, was tracked to appellants' residence, Bard picked up Bernard's third chemical order, and both appellants were arrested, along with Bernard, in the motor home where the methamphetamine laboratory was in operation. On these facts a rational jury could find that Bernard's second and third orders, acquisition, and transportation of chemicals were in furtherance of a single conspiracy to manufacture methamphetamine involving both Brock and Bard. Consequently, the evidence was admissible.

Appellants' objection to testimony regarding the statements and actions of Bernard with respect to the first order of chemicals is more substantial. It is quite arguable that these statements and actions are not within the coconspirator exception of Rule 801(d)(2)(E). Moreover, it could be argued that testimony regarding Bernard's evasive actions designed to shed DEA surveillance is inadmissible because irrelevant. 2 Nonetheless, such possible errors were clearly harmless in light of the overwhelming evidence of guilt. See id. at 772; 4 Weinstein's Evidence, P 801(d)(2)(E)(01) at 801-183-84 and n.64 (1979). Moreover, it is

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not likely that the jury's assessment of Brock's and Bard's activities was influenced by evidence that Bernard once attempted to evade DEA agents.

2. Variance in Proof of Conspiracy

Appellants' next contend that there was a fatal variance between the evidence adduced at trial and the conspiracy charged in Count I of the indictment. They argue that testimony regarding Bernard's activities revealed at least two distinct conspiracies. The first was composed of Bernard and Ralph Comstock, which involved the second chemical order that was electronically tracked from...

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