U.S. v. Swingler

• Decision Date: 20 March 1985
• Docket Number: 83-1590,83-1571,Nos. 83-1570,83-1572,83-1598 and 83-2434,s. 83-1570
• Citation: 758 F.2d 477
• Parties: 20 Fed. R. Evid. Serv. 1380 UNITED STATES of America, Plaintiff-Appellee, v. Dennis SWINGLER, Jack E. Houser, Jr., Ralph W. Vicory, James D. Jahnke, Jerald W. Richardson, Larry Lee Richardson, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 477

758 F.2d 477

20 Fed. R. Evid. Serv. 1380

UNITED STATES of America, Plaintiff-Appellee, v. Dennis SWINGLER, Jack E. Houser, Jr., Ralph W. Vicory, James D. Jahnke, Jerald W. Richardson, Larry Lee Richardson, Defendants-Appellants.

Nos. 83-1570, 83-1571, 83-1572, 83-1590, 83-1598 and 83-2434.

United States Court of Appeals Tenth Circuit.

March 20, 1985.

Patrick T. Murphy, Asst. U.S. Atty., Denver, Colo. (Robert N. Miller, U.S. Atty., and John O. Martin, Asst. U.S. Atty., Denver, Colo., with him on brief), for United States of America, plaintiff-appellee.

Jack S. Nordby, Minneapolis, Minn. (Alan P. Caplan, San Francisco, Cal., with him on brief), for Dennis Swingler, Ralph W. Vicory, James D. Jahnke and Larry Lee Richardson, defendants-appellants.

Rollie R. Rogers, Denver, Colo. (William Sublette, Denver, Colo., with him on brief), for Jack E. Houser, defendant-appellant.

Vicki Mandell-King, Asst. Federal Public Defender, Denver, Colo. (Michael G. Katz, Federal Public Defender, Denver, Colo., with her on brief), for Jerald W. Richardson, defendant-appellant.

Before BARRETT, Circuit Judge, DOYLE, Circuit Judge, and BOHANON, Senior District Judge. ^*

BOHANON, Senior District Judge.

These cases are appeals from convictions under several counts of an indictment alleging conspiracy to distribute d. 1. amphetamine, a federally controlled substance, in violation of 21 U.S.C. Secs. 841(a)(1) and 846 (Count I); conspiracy to manufacture d. 1. amphetamine in violation of the same statutes (Count II); and travel in interstate commerce to facilitate the promotion, establishment and carrying on of an unlawful activity in violation of 18 U.S.C. Secs. 2 and 1952 (Count IV). The jury found defendants Jack Houser, Jerald Richardson and James Jahnke guilty on Counts I, II and IV, defendant Dennis Raymond Swingler guilty on Counts II and IV, and defendant Ralph Vicory guilty of Counts I and IV. Because defendant Larry Richardson was not apprehended until several months after the other defendants were arrested, he was tried separately. He was found guilty of Counts I, II and IV. The trial court severed Counts V and VI of the Indictment because none of the present defendants were charged in those counts, and dismissed Count III.

THE FACTS

All of the defendants, except Jerald and Larry Richardson, on appeal challenge the legality of their arrests and subsequent searches of their vehicles. Because one member of the gang, Robert Fisher, ¹ became a government witness and revealed much significant information only after those arrests, it will be useful to discuss the facts of these cases in two stages. What follows immediately hereafter is a summary of the evidence the government possessed during the time prior to and including the arrests of Vicory, Jahnke, Houser, Jerald Richardson and Swingler. Additional facts will be introduced as appropriate in connection with our discussion of other issues the defendants raise.

The criminal activity giving rise to these cases involves primarily members of the Colorado chapter of the Sons of Silence motorcycle gang. The members of this gang had a long history of illegal use and distribution of controlled substances and were investigated by the F.B.I., through Special Agent Bradley Timms, commencing in September of 1981. During September of the following year, 1982, Agent Timms made contact with Beth Fisher, the divorced wife of Robert Fisher who was living again with her ex-husband. Agent Timms persuaded her to cooperate in the F.B.I. investigation. Thereafter, Beth Fisher was in contact with Agent Timms on an almost daily basis and relayed to him all that she could learn from her husband about the drug-related activities of the Sons of Silence, particularly with reference to their use and sale of amphetamine. ² The information she provided was accurate and was never contradicted by information received through other channels including, at one point, electronic listening devices placed in the house Beth shared with Bob and on their telephone.

On January 10, 1983, or thereabouts, Bob Fisher told Beth that Larry Richardson also known in the gang as "Butch," had asked Bob to make a trip to California to pick up 60 pounds of amphetamine and return with it to Colorado. Bob understood he was to receive two pounds of the amphetamine for himself for doing the favor. In subsequent days Bob learned more details of Richardson's plan which apparently involved more people and was still in the formation stage. Bob told Beth, who without Bob's knowledge was relaying each successive version of the scheme to the F.B.I.

Finally, on January 17, 1983, the conspirators, including Bob and the defendants in this case, except Jack Houser, finalized their plans at a meeting during a party in Longmont, Colorado. As Agent Timms eventually learned of these plans through Beth, it appeared that five couriers had been selected to go to California to pick up equal portions of the drug, that is, twelve pounds each. These couriers were to be Bob Fisher, Arnie, last name unknown, Ralph Vicory, Jimmy, last name unknown, and Ben Reed. Beth also indicated that Carl Elsner and a gang member she knew only as "Oarless" were to rent a truck in California and transport a complete laboratory, including chemicals, for the manufacture of amphetamine back to Denver where a "chemist" or "cook" would also be brought to operate the lab. The couriers involved in the scheme would receive in payment two pounds each of the amphetamine they transported as well as a portion of every batch subsequently produced by the laboratory.

In the early evening of Friday, January 21, Beth talked with Agent Timms and told him that Ben Reed had come by the motel room she and Bob were then occupying to obtain two grams of amphetamine for Ralph Vicory and Ben to use on their trip. At that time Reed indicated to her that he thought the best route to California and back would be through Wyoming on Interstate 80.

Early on Saturday morning, January 22, 1983, Beth Fisher again contacted Agent Timms and told him that Bob had obtained a rental car and that they would shortly be leaving for California. She gave Agent Timms the description of the car and license plate number and also a phone number with a California area code that Bob had given her the night before. She said Bob had written the number on a piece of paper with the word "Stockton" and had said with considerable elation that this was the number that was going to make them rich, that it was the contact number in California.

Over the next several days, Agent Timms traced this number with the aid of the F.B.I. division office in Sacramento, California. He learned that the number was assigned to 1219 Dakota Avenue in Modesto, California, and that this address was known to the local sheriff's office as the residence of Cecelia Martinez and Glen Gary who was president of the Barhoppers motorcycle gang and known to be heavily involved in the manufacture and distribution of amphetamine. He further learned that Glen Gary was currently incarcerated on a murder conviction but that his drug business was still being operated by Cecelia Martinez and an individual named Jack Houser who was known through informants to have been trained by Glen Gary as a "chemist" or "cook" capable of manufacturing amphetamine.

During the same conversation in which he obtained the Modesto phone number, Agent Timms pressed Beth for more identifying information about "Arnie" and "Jimmy," the two couriers whose last names she did not know. She could not tell him anything more about Arnie, but said Jimmy was a member of the Sons of Silence from Minnesota and drove an older mid-60's model large size 4-door blue Oldsmobile.

On Sunday, January 23, Agent Timms contacted Denver Police Detective Don Simpson who had been investigating motorcycle gangs in Colorado for five years and was on more or less familiar terms with the Sons of Silence. Detective Simpson was immediately able to identify the gang member Beth Fisher had called "Oarless" as being in fact Dennis Ray Swingler. Later the same evening, Detective Simpson was again called and requested to find out who "Jimmy" was. The following morning Simpson called Joy Rikala of the Minnesota Bureau of Criminal Apprehension with whom he had exchanged information about motorcycle gangs in the past. Given the information about Jimmy that the F.B.I. had at that point, that is, that he was a member of the Sons of Silence in Minnesota who drove a blue mid-60's year Oldsmobile, Rikala was able to identify him as James Dean Jahnke and conveyed this information to Detective Simpson along with Jahnke's date of birth and the Minnesota license plate number for his 1965 Oldsmobile.

In the meantime the Fishers had left for California tailed by an eight-person surveillance team, arriving in Stockton, California, sometime during the morning of Sunday, January 23. During the trip, contact was maintained with Beth by F.B.I. Special Agent Marabel Hawkins who met Beth in bathrooms at stops along the way.

The Fisher's car was followed to Stockton arriving on Sunday morning, January 23, 1983. Bob made a phone call at a grocery in Stockton, then they drove to a gas station in Ripon, approximately 10 to 15 miles from Modesto, where the couple stopped to get gasoline. At that time Beth made a short phone call to the F.B.I. informing them that Bob had made contact and obtained an address on Dakota Street in Modesto where they were then heading. The Fishers were subsequently followed to 1219 Dakota Avenue in a rural area of Modesto, California, the same address Agent Timms had previously determined to correspond to the telephone number Bob gave Beth on Friday night in Denver. Bob got out of the car and went into the house but returned shortly, and they drove off. In all, the Fisher vehicle was at the house on Dakota Avenue for approximately 15 minutes. Several other vehicles were observed to be...