825 F.2d 1342 (9th Cir. 1987), 85-3116, United States v. Calabrese

Docket Nº:85-3116, 86-3019 and 86-3021.
Citation:825 F.2d 1342
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Richard Angelo CALABRESE and Carol Ann Calabrese, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Terry A. LOGAN, Defendant-Appellant.
Case Date:August 21, 1987
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1342

825 F.2d 1342 (9th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,

v.

Richard Angelo CALABRESE and Carol Ann Calabrese,

Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellee,

v.

Terry A. LOGAN, Defendant-Appellant.

Nos. 85-3116, 86-3019 and 86-3021.

United States Court of Appeals, Ninth Circuit

August 21, 1987

Argued and Submitted March 4, 1987.

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[Copyrighted Material Omitted]

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Philip E. Pitzer, Cincinnati, Ohio, for defendants-appellants Richard and Carol Calabrese.

Joseph Saint-Veltri, Denver, Colo., for defendant-appellant Terry Logan.

James E. Seykora, Billings, Mont., for plaintiff-appellee.

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

Before SNEED and HALL, Circuit Judges, and STEPHENS, [*] District Judge.

CYNTHIA HOLCOMB HALL, Circuit Judge:

Defendants Terry Logan, Richard Calabrese, and Carol Calabrese were convicted by a jury of conspiracy to manufacture and distribute methamphetamine in violation of 21 U.S.C. Sec. 846. Logan was also convicted of manufacturing and distributing methamphetamine in violation of 21 U.S.C. Sec. 841(a)(1). All three defendants appeal from their convictions. This court has jurisdiction

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over the appeals pursuant to 28 U.S.C. Sec. 1291. We affirm.

I.

After several months of investigation, on October 31, 1984, federal law enforcement officials obtained search warrants for property owned by defendants Richard and Carol Calabrese, property owned by defendant Terry Logan, and the premises of Sheridan Towing, a business held in the name of Richard Calabrese. Logan is the brother of Carol Calabrese; Richard Calabrese is the husband of Carol Calabrese.

The officials executed the warrants on November 2, 1984. During their search of the Calabrese residence, the agents seized evidence suggesting that the defendants were violating federal drug laws. Among the items seized there were the following: a list in the handwriting of Carol Calabrese of chemicals needed to manufacture methamphetamine, a note in Carol Calabrese's purse reading "110 lbs. cut" and "30 lbs. phospherous," firearms, large quantities of hidden cash, false identification papers for both Richard and Carol Calabrese, and tax notes for all three defendants in the handwriting of Carol Calabrese. The tax notes were to be used as suggestions as to what income should be reported on tax returns. The evidence indicated that there were no regular records kept of actual income. The officials seized further evidence of drug-related activity during their search of a detached outbuilding on the Logan premises. Among the items seized there were: two funnels, five 20-litre acetone cans, mixing bowls, a scale with a 75-pound weighing capacity, and a gas mask. Subsequently, a material found on the funnels was identified as methamphetamine.

After the November 2, 1984 searches, the Federal Bureau of Investigation took possession of the Logan premises. The government then filed a verified complaint for civil forfeiture against the Logan premises pursuant to 21 U.S.C. Sec. 881. A warrant of arrest in rem was issued directing the United States Marshal to arrest the premises. The Marshal secured the property and took exclusive possession of it.

On November 15, 1984, the grand jury handed down an indictment charging all three defendants with conspiracy to manufacture and distribute methamphetamine in violation of 21 U.S.C. Sec. 846. Later, on January 7, 1985, agents of the Federal Bureau of Investigation entered the detached laboratory on the Logan premises to remove additional evidence. Since the structure had been in the exclusive possession and control of the government since the November 2, 1984 search, the agents did not secure a search warrant. They seized a fan cover and gathered paint scrapings. At trial, a chemist testified as to the presence of methamphetamine on these items.

On September 5, 1985, the grand jury handed down a superceding indictment. Count I charged the three defendants with conspiracy to manufacture and distribute methamphetamine from October 1982 to November 2, 1984 in violation of 21 U.S.C. Sec. 846. Count II charged the defendants with manufacturing and distributing methamphetamine from November 1983 to November 2, 1984 in violation of 21 U.S.C. Sec. 841(a)(1).

After a jury trial, Logan was convicted on Counts I and II of the superceding indictment; Richard and Carol Calabrese were convicted on Count I. The district court sentenced Logan to consecutive fifteen year terms on Counts I and II. The court sentenced Richard Calabrese to fifteen years on Count I and Carol Calabrese to three years on Count I. All three defendants appeal from their convictions.

II.

A.

The district court sentenced Logan to consecutive fifteen year sentences on Counts I and II of the superceding indictment; it sentenced Richard Calabrese to fifteen years on Count I of the indictment. The court found that the increased penalties of the Comprehensive Crime Control Act of 1984 (the Act), 21 U.S.C. Sec. 841(b)(1)(B) (Supp. III 1985), applied. The Act became effective on October 12, 1984 and increased the maximum sentences

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on Counts I and II of the indictment from five years to fifteen years. The defendants claim that the application of the increased penalties contained in the Act violated the ex post facto clause of article I, section 9 of the Constitution. Whether the sentences imposed were "illegal" is a question of law which we review de novo. United States v. Fowler, 794 F.2d 1446, 1449 (9th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 1309, 94 L.Ed.2d 153 (1987).

Logan failed to raise the ex post facto issue before the district court. Logan claims that the district court's failure to consider the issue was "plain error" under Federal Rule of Criminal Procedure 52(b) and, therefore, that we should consider the issue for the first time on appeal. We disagree. Count I of the indictment charged Logan with conspiracy to manufacture and distribute methamphetamine from October 1982 to November 2, 1984; Count II of the indictment charged Logan with manufacturing and distributing methamphetamine from November 1983 to November 2, 1984. A jury's verdict represents a finding that a crime was committed as alleged in the indictment. Leyvas v. United States, 371 F.2d 714, 717 (9th Cir.1967). When it convicted Logan on Counts I and II, the jury found that the crimes took place until November 2, 1984. Therefore, it was not "plain error" for the district court to apply the increased penalties of the Act which became effective on October 12, 1984. Since Logan failed to raise the ex post facto issue below, we will not consider it on appeal.

Richard Calabrese did raise the ex post facto issue below. The district court, in a published opinion, rejected Calabrese's argument. See United States v. Calabrese, 624 F.Supp. 1134 (D.Mont.1986). Calabrese contends that there is not substantial evidence to support the jury's finding that he conspired to manufacture and distribute methamphetamine between October 12, 1984, the effective date of the Act, and November 2, 1984. See Leyvas, 371 F.2d at 717-18. This contention is meritless. During the November 2, 1984 search of the Calabrese residence, federal agents found several items which indicate that the conspiracy was still continuing: firearms, false identification papers for Richard and Carol Calabrese, large quantities of cash hidden on the premises, notes in the handwriting of Carol Calabrese relating to chemicals needed to manufacture methamphetamine, and tax notes for all three defendants in the handwriting of Carol Calabrese. Since there is substantial evidence to support the jury's finding that the conspiracy continued until November 2, 1984, we reject Richard Calabrese's ex post facto argument.

B.

Logan argues that consecutive sentences imposed on the conspiracy count and the manufacturing and distribution count subjected him to double jeopardy. He acknowledges Ninth Circuit case law which holds that conspiracy and the completed substantive offense are separate crimes for which separate sentences can be imposed. United States v. Batimana, 623 F.2d 1366, 1370 (9th Cir.), cert. denied, 449 U.S. 1038, 101 S.Ct. 617, 66 L.Ed.2d 500 (1980). Logan argues that this court should create an exception to this well-established rule where the proof required for the conspiracy and the substantive offense is identical. See, e.g., United States v. Sutton, 642 F.2d 1001, 1040 (6th Cir.1980) (en banc), cert. denied, 453 U.S. 912, 101 S.Ct. 3143, 69 L.Ed.2d 995 (1981). This court has rejected the Sixth Circuit's approach on several occasions. See, e.g., United States v. Rubalcaba, 811 F.2d 491, 495 (9th Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 107 (1987). Accordingly, we reject Logan's double jeopardy argument.

III.

A.

Logan argues that Count II of the superceding indictment fails to state an offense and is unconstitutionally vague, ambiguous, and duplicitous. He failed to make this argument at the district court level. Logan contends that the failure of the district court to consider the issue amounted to "plain error" under Federal

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Rule of Criminal Procedure 52(b). He fails to support this proposition by reason or authority. Therefore, except to the extent that Count II fails to state an offense, Logan has waived the right to object to defects in the superceding indictment. Fed.R.Crim.P. 12(b)(2); United States v. Gulino, 588 F.2d 256, 258 (9th Cir.1978).

Logan claims that Count II of the superceding indictment fails to state an offense in that it charges him with two offenses, namely, manufacturing and distributing methamphetamine. This argument is frivolous.

B.

Logan also asserts that the district court erred in denying his motion for a bill of particulars. The district court found that the superceding...

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