U.S. v. Barnett

Citation667 F.2d 835
Decision Date08 February 1982
Docket NumberNo. 81-1102,81-1102
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Gary BARNETT, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Brian C. Leighton, Asst. U. S. Atty., Fresno, Cal., for plaintiff-appellant.

Daniel A. Bacon, Fresno, Cal., for defendant-appellee.

Appeal from the United States District Court for the Eastern District of California.

Before TANG and ALARCON, Circuit Judges and KELLAM *, District judge.

ALARCON, Circuit Judge:

The government appeals the district court's order: (1) suppressing all items seized in a search of Gary Barnett's residence pursuant to a warrant; and (2) prohibiting the government from presenting "(e)vidence that defendant did not advertise in certain recognized scientific magazines." We reverse.

PROCEDURAL BACKGROUND

On September 4, 1980, Barnett was charged in a three count indictment with: (1) aiding and abetting Donald Eugene Hensley in the attempted manufacture of phencyclidine (Count I); (2) using United States mails to cause and facilitate the commission of the crime of attempted manufacture of phencyclidine "on or about February 8, 1979 to on or about May 11, 1979" (Count II); and (3) using the United States mails on or about August 7, 1980, to facilitate the attempted manufacture of phencyclidine (Count III).

On December 5, 1980, Barnett filed a motion to suppress evidence seized in a search of his residence pursuant to a warrant. A warrant issued on August 21, 1980, authorized "any special agent of the Drug Enforcement Administration" to search Barnett's apartment, located at 2313 East 24th Street, Brooklyn, New York. The motion alleged the search warrant was invalid on the following grounds:

1. That the Affidavit for Search Warrant is based upon inaccurate and incomplete information.

2. That said Affidavit for Search Warrant is insufficient in law to establish probable cause for the issuance of a Search Warrant;

3. The Affidavit states no facts sufficient to establish probable cause justifying the issuance of a Search Warrant;

4. That the facts alleged in the Search Warrant were insufficient to connect your Petitioner with any illegal conduct or participation;

5. Upon information and belief, at no time did the government allege or believe that contraband or the fruits of any crime would be found in the residence of the Petitioner. That moreover, the government knew or should have known that the material they sought to seize was protected by the First Amendment to the United States Constitution, and the seizure of same violated the defendant's rights under the First, Fourth and Fifth Amendments as aforesaid;

6. That upon information and belief, the United States Patent Office, through libraries and otherwise, makes available to the general public inter alia, the formulas and instructions for manufacture and chemical combination of Phencyclidine. That attached hereto as Exhibit "A", is a copy of said Patent No. 3,097,135 from the U.S. Patent Office, which is the formula and instructions for the manufacture of Phencyclidine (PCP). That the other material requested or demanded to be seized by the government is information legally obtained and possessed without any nexus to criminal activity;

7. The Affidavit in support of the Search Warrant and the said Search Warrant fail to adequately describe the place to be searched;

8. The Search Warrant herein was issued on the basis of an insufficient Affidavit for Search Warrant and solely upon the belief of the affiant who made said Affidavit and upon certain unsupported hearsay. That moreover, as a matter of law, the material requested is protected by the rights of Petitioner under the First Amendment to the United States Constitution, and further by the equal protection and due process of laws.

Also on December 5, 1980, Barnett filed a motion to dismiss the indictment on the following grounds:

1. The Indictment does not state facts sufficient to constitute an offense against the United States.

2. The Indictment is violative of equal protection, due process, ex post facto (sic), and the First and Sixth Amendments of the United States Constitution.

3. That the Government is equitably estopped from proceeding upon the said Indictment, which should thereby be dismissed in the interests of justice.

4. That the Third Count of the Indictment should be dismissed because there was no underlying felony to facilitate.

On December 30, 1980, to obtain an advance ruling as to the admissibility of certain evidence, the government filed a "Notice of Intention to use Evidence at Trial." The evidence included, inter alia, "(e)vidence that the defendant did not advertise in certain recognized scientific magazines."

On February 4, 1981, the district court, 507 F.Supp. 670, issued a memorandum decision setting forth the following: (1) Barnett's motion to suppress the evidence seized pursuant to the search warrant issued August 21, 1980, was granted. The district court concluded that the motion to suppress must be granted because none of the "seized articles were either contraband, evidence of criminal activity, or connected with criminal activity"; (2) Barnett's motion to dismiss the indictment was denied; and (3) "evidence that defendant did not advertise in certain recognized scientific magazines" would not be admissible.

PERTINENT FACTS 1

On June 1, 1980, Agent Sherrington of the Drug Enforcement Administration, accompanied by other law enforcement officers, executed a federal search warrant at the residence of Donald Eugene Hensley in Modesto, California.

Hensley was found seated in the rear yard next to an outbuilding which contained an operational phencyclidine (PCP) factory. He was reading a document entitled "Synthesis of PCP-Preparation of Angel Dust". After his arrest Hensley stated that "he was attempting to manufacture PCP and had been doing so for sometime." He also stated that through an advertisement published in "High Times Magazine", "a drug related periodical" he learned of United States News Service, Post Office Box 333, Bay Station, Brooklyn, New York. Hensley told Agent Sherrington that he responded to the advertisement in High Times, a drug related periodical, and received from United News Service a catalog of "available drug manufacture instructions". He then forwarded a postal money order in the amount of ten dollars ($10.00) to United News Service for the instructions for the manufacture of PCP. Thereafter Hensley received from United News Service the instructions for the manufacture of PCP. He was using these instructions at the time of his arrest. Together with the instructions United News Service supplied Hensley with the address of "Merrill Scientific" Merrill Scientific was described in the materials as a "reliable supply house" for the chemicals necessary for the manufacture of PCP. Hensley ordered the chemicals for his PCP laboratory from Merrill Scientific.

Hensley pleaded guilty to charges of attempted manufacture of PCP.

Agent Sherrington seized the following documents from Hensley's residence:

(1) United News Service catalogs of available synthesis reports for the manufacture of methaqualone (quaaludes), methamphetamine (speed), phencyclidine (PCP), dimethyltrayptamine (DMT), lysergic acid (LSD), amphetamine, and cocaine.

(2) A newsletter from United News Service suggesting ordering synthesis reports now because with the Drug Enforcement Administration's intensification program "(w)e have no way of predicting how much longer we will be able to offer these special synthesis reports to you."

(3) A document from United News Service which provides that a reliable source for obtaining chemicals, supplies, cab equipment, etc., is Merrill Scientific, 1665 Buffalo Road, Rochester, New York 14624.

(4) Eight envelopes addressed to Don Hensley and United News Service as the return address.

(5) Three United Postal money order receipts each in the amount of ten dollars ($10.00) bearing the name of United News Service as the payee.

On July 29, 1980, Agent Sherrington obtained cancelled money orders from the Postal Inspector's Office in Fresno, California, which correspond to the money order receipts found in Hensley's residence. Each money order was endorsed by "G. Barnett" and stamped "United News Service, P. O. Box 333, Bay Station, Brooklyn, New York 11235."

Agent Sherrington was advised by Special Agent John Huber that Post Office Box 333, was subscribed to by Gary Barnett. Special Agent John Huber observed Gary Barnett leave his apartment and travel to the Bay Station Post Office where Barnett deposited mail and picked up incoming mail from Box 333.

On August 2, 1980, Agent Sherrington, using the name James Fredericks, sent United News Service a thirty dollar ($30.00) money order requesting instructions to manufacture PCP, amphetamines, and methaqualone. Special Agent Huber observed Barnett pick up the James Frederick letter from Box 333 and take it to his apartment.

On August 7, 1980, Barnett was observed leaving his apartment carrying mail. He drove directly to the Bay Station Post Office and deposited the mail. Special Agent Huber examined the mail and found a brown envelope addressed to James Fredericks, c/o Post Office Box 11705, Fresno, California, 93774, the address used by Agent Sherrington in ordering the synthesis reports.

The envelope contained:

(1) A one page document entitled "Synthesis of PCP/Angel Dust." A copy of this document was seized from Hensley's residence.

(2) A document entitled "Synthetic Routes to Amphetamines." A copy of this document was seized from Hensley's residence.

(3) A document entitled "A Feasible Synthesis of Methaqualone Hydrochloride" produced by United News Service.

(4) A document entitled "Chemicals used in Drug Synthesis." The cover of this material bears the following words: "A UNS Special Report Produced by UNS All Rights Reserved, 1980,...

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