U.S. v. Jones, 87-1153
| Decision Date | 17 February 1988 |
| Docket Number | No. 87-1153,87-1153 |
| Citation | 839 F.2d 1041 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Timothy JONES, Charles Wayne Norman, Perry Cecil Patronelli, and Richard Keith Hagler, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Paul E. Gartner, Jr., Waco, Tex. (Court Appointed), for Jones.
Ray Bass, Austin, Tex., for Norman.
Frank Maloney, S. Ronald Keister, Austin, Tex., for Hagler.
John C. Emerson, Austin, Tex., for Patronelli.
Jack Frels, LeRoy Morgan Jahn, Asst. U.S. Attys., San Antonio, Tex., for U.S.
Appeals from the United States District Court for the Western District of Texas.
Before BROWN, JOHNSON, and HIGGINBOTHAM, Circuit Judges.
Four criminal defendants appeal from convictions for conspiracy to manufacture a controlled substance. We affirm the convictions, finding that the jury had sufficient evidence to support its verdict and that the prosecutor's closing argument, while highly improper, was harmless in light of the evidence of guilt. We also affirm the trial court's admission of certain recorded conversations and dismiss defendants' contention that the government's scheme to infiltrate the conspiracy was "outrageous conduct" inconsistent with due process. Finally, we reject the contentions of individual defendants that they were entitled to an entrapment instruction and a separate trial.
A jury found the defendant-appellants guilty of conspiracy to manufacture methamphetamine, a kind of "speed." The testimony of Gary Griffin, one of the co-conspirators, and Richard Tucker, an agent of the Drug Enforcement Administration, provided the bulk of the government's evidence.
In early 1986, defendant Timothy Jones contacted Griffin about locating someone who knew how to make speed. Griffin testified that he watched Jones, along with Richard Hagler and Charles Norman, attempt to produce the drug on a prior occasion but that they did not know how to achieve the necessary chemical reaction. They wanted someone who could salvage the chemical remains of their first attempt as well as assist them in producing another batch of the drug from scratch. In return for release of a debt owed to Jones, Griffin called Mark Bottomley, an acquaintance of Griffin's in Colorado.
Griffin did not know that Bottomley was a government informant. At the government's request, Bottomley introduced Griffin by telephone to Agent Tucker, who was posing as a chemist. They planned for Bottomley and Agent Tucker to go to Texas to oversee the manufacturing process. The government promised Bottomley a financial reward if the operation succeeded.
At a bar called Mulligan's, Griffin met with Jones and Perry Patronelli, who the government alleges provided financial support. Jones and Patronelli agreed to fly Bottomley and Agent Tucker to Austin and to provide keys to a house in Davilla, Texas, where the manufacturing would take place. Bottomley flew to Austin the next day using an airplane ticket purchased by Hagler on Norman's American Express card. Bottomley went with Griffin to Hagler's house. Griffin then called Agent Tucker to confirm that the necessary materials were on hand. Griffin and Bottomley spent the night at Hagler's house.
Agent Tucker went to Hagler's house the next day and inspected the materials. Griffin's "recipe" turned out to be not for speed, but rather for MDMA, a drug also known as "ecstasy." Although a few of the ingredients necessary to produce methamphetamine were on hand, several critical elements were missing. Agent Tucker dictated to Griffin a list of necessary chemicals and glassware, along with recommendations of stores where the materials could be purchased. Later, after Agent Tucker left, Griffin summoned Jones and Norman to the house and gave them a copy of the list of materials.
After Norman provided a key and a map, Griffin, Agent Tucker, and Bottomley drove to the Davilla house and Agent Tucker approved the location as a lab site. Back at Norman's house, Norman gave Griffin $200 in expense money for Agent Tucker. Griffin suggested that Norman and Hagler go to Austin the next day to purchase the chemicals and glassware on Agent Tucker's list. Norman agreed to contact Griffin if they encountered difficulty. Agent Tucker sent Bottomley back to Colorado on the pretext of obtaining advance money from a possible buyer of the finished product.
The next morning, April 10, Norman and Hagler went to Austin carrying $1,500 in cash. They inquired at a photographic supply company Agent Tucker had recommended, and the salesman said, "You boys are making dope." Hagler replied, "It's not illegal to buy these chemicals, is it?" The salesman provided several of the items on the list, but told them that the critical ingredient, phenylacetic acid, would have to be purchased in San Antonio.
After talking with Norman later that day, Griffin told Jones that they needed $1,100-$1,200 to acquire enough phenylacetic acid. Griffin recalled Jones as saying, "Well, I don't have it on me; I'll have to get in touch with Perry." Griffin suggested they wire the funds to San Antonio. Jones later told Griffin that he had arranged for Patronelli to wire the funds by Western Union. In Temple, Texas, an individual identifying himself as Patronelli applied for a $1,100 money order payable to Norman at the San Antonio Western Union office. However, by the time the money was available in San Antonio, Norman and Hagler already had purchased a smaller quantity of phenylacetic acid and arranged for the rest to be shipped C.O.D. Hence, the money never was retrieved.
That same day, Agent Tucker met Griffin at the Hagler house, carrying a concealed tape recorder. Agent Tucker suggested that the four of them go to the Davilla house and prepare the lab when Norman and Hagler returned. Agent Tucker had arranged for the arrests to occur that evening.
Norman and Hagler arrived at Hagler's house around 7:00 p.m., loaded the chemicals and glassware into cars, and drove to the Davilla house. During the drive, Agent Tucker recorded his conversation with Griffin, in which they discussed the conspiracy. Griffin indicated that Norman and Hagler were partners in the manufacturing operation, that Patronelli was the operation's financier and had provided access to the Davilla house, and that "Tim"--apparently meaning Tim Jones--was also a participant in the venture.
After arriving at the Davilla house, Norman insisted that they lock the front gate on his belief that Texas police could not lawfully enter a locked property; Hagler followed the suggestion and locked the gate. Once inside, Hagler volunteered to help prepare the materials. Agent Tucker instructed him to tear up aluminium foil strips that would be used for the chemical process, while he and Griffin went to the store. On the way, Griffin was arrested. Agent Tucker and other agents returned to the Davilla house and arrested Hagler and Norman. At the time of these arrests, everything necessary to the chemical process was present, except for hydrogen-chloride gas. However, no actual attempt to manufacture the drug was ever made.
Norman and Hagler were read their rights and each of them asked to speak with an attorney. On the advice of Assistant United States Attorney Jack Frels, however, the agents did not allow Norman and Hagler to make any phone calls or speak to an attorney. The next morning, April 11, and still lacking benefit of counsel, Norman agreed to make a monitored phone call to Patronelli. To entice Patronelli to make an incriminating statement, DEA agents had Norman call Patronelli and relate to him a ruse invented by the agents: Tucker had completed processing the chemicals left over from the earlier attempt, netting 34 ounces of methamphetamine; they had moved the lab to Bastrop, Texas, to evade discovery; and Tucker wanted $24,000 before he would make a new batch. Patronelli responded that Before hanging up, however, Patronelli got Norman's phone number and promised to get back to him. Patronelli also instructed Norman to collect the wired money and asked whether they had cleaned up the Davilla house before leaving.
A few minutes later Patronelli called back and asked how much had been made and whether it came from "what we had to start with." Norman said they had made "34 pieces," and when asked to clarify what that meant he said, "We're talking about ounces." At the end of the conversation Patronelli said he would keep trying to contact Jones.
Jones called Norman twice. Jones reminded Norman that the deal was that Tucker would take two pounds and leave five for everyone else. At several points in the conversation Jones threatened to kill Gary Griffin and Agent Tucker if they did not surrender five pounds. Jones and Patronelli were arrested shortly thereafter. Jones was carrying a copy of the Western Union application to wire money.
The defendants each were charged with conspiracy to manufacture methamphetamine, a schedule II controlled substance, in violation of 21 U.S.C. Secs. 841(a)(1), 846. Jones and Patronelli also were charged with use of a communication device (the Western Union money order) to facilitate the conspiracy, in violation of 21 U.S.C. Sec. 843(b). The jury found defendants guilty. Hagler received a sentence of five years and a $2,500 fine; Norman, eight-years, $2,500; Patronelli, eight years, $2,500; and Jones, fifteen years.
Gary Griffin was charged with one count of conspiracy to manufacture a controlled substance and three counts of using a telephone in the commission of a felony. He plead guilty to the conspiracy charge, for which he was sentenced to eight years imprisonment. The government dropped the other charges in exchange for his testimony.
We turn first to defendants'...
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