852 F.2d 1502 (7th Cir. 1988), 86-3150, United States v. Nesbitt

Docket Nº:86-3150.
Citation:852 F.2d 1502
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Thomas NESBITT, Defendant-Appellant.
Case Date:July 26, 1988
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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852 F.2d 1502 (7th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,


Thomas NESBITT, Defendant-Appellant.

No. 86-3150.

United States Court of Appeals, Seventh Circuit

July 26, 1988

Argued Sept. 16, 1987.

Rehearing and Rehearing In Banc Denied Sept. 9, 1988.

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Richard A. Hanning, Hammond, Ind., for defendant-appellant.

Richard A. Cook, Asst. U.S. Atty., James G. Richmond, U.S. Atty., Hammond, Ind., for plaintiff-appellee.

Before COFFEY, RIPPLE, and MANION, Circuit Judges.

COFFEY, Circuit Judge.

The defendant-appellant Thomas Nesbitt appeals his convictions and sentences on charges of conspiracy to manufacture methamphetamine, a controlled substance, and the manufacture of phenyl-2-propanone ("P2P") in violation of 21 U.S.C. Sec. 846, 841(a)(1). We affirm.

I. Factual Background

The United States Drug Enforcement Administration ("DEA") operated an undercover business in Elk Grove Village, Illinois, known as North Central Industrial Chemicals, Inc. ("NCIC"). NCIC offered a variety of chemicals and lab equipment for sale. Its customers were discretely screened in an attempt to determine whether or not the chemicals or equipment purchased were being used for illegal purposes, including the manufacture of controlled substances. As part of the screening process, a DEA chemist would review a copy of each of the customers' receipts in an attempt to ascertain the potential use of the chemical or a combination of them the customer had purchased. 1 If the chemist determined, on the basis of the type and/or amount of chemicals purchased, that there was a distinct possibility the chemicals could be combined to produce an illegal drug, the DEA would undertake a more thorough investigation.

On October 17, 1984, James Nesbitt, the defendant's brother, and Ana DaSilva, later identified as the defendant's girlfriend, visited NCIC and placed an order for equipment and chemicals. Among the items ordered was phenylacetic acid, a chemical used to synthesize P2P, a necessary component in the preparation of methamphetamine (a non-narcotic controlled substance). 2 Based upon the potential that phenylacetic acid, in combination with the type and amount of chemicals James and Ana purchased, could very well be used to manufacture methamphetamine, the DEA decided to place James and Ana under surveillance when they returned to NCIC to pick up their order.

Later that day James and Ana picked up their merchandise, and the DEA dispatched a number of cars (a DEA agent testified that "probably more" than six cars were involved) to tail the couple after their departure from NCIC. Despite the six-vehicle surveillance team, James and Ana lost the agents in heavy traffic near Chicago.

In the ensuing days, James Nesbitt placed several telephone calls to NCIC to order more chemicals and lab equipment, and on October 23, 1984, returned to NCIC to pick up the materials previously ordered. 3 The DEA again instituted surveillance,

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following him (James Nesbitt) from NCIC to a chemical company in downtown Chicago. The agents tailed him to the University of Illinois Circle Campus, in Chicago, Illinois, then south on the Dan Ryan to Audio Tech, Inc. and ultimately to his residence in Crete, Illinois, a southern suburb of Chicago. The DEA continued their surveillance of James' residence until the late evening of October 23; the next morning they resumed their stakeout, and followed his car to the downtown Chicago chemical company. After James departed from there, he once more lost the agents in heavy traffic.

After James Nesbitt had returned to his home in Crete, Illinois, during the later evening hours of October 24, special agents of the DEA conducted a search of the premises pursuant to a court-authorized warrant (unchallenged on appeal) and found no trace of chemicals, lab equipment or illegal drugs. James was not arrested at this time. Following the search of his Crete residence (concluded during the early morning hours of October 25), James took DEA agents (apparently voluntarily) to the outside of a secluded rural residence in New Carlisle, Indiana, owned by one Douglas Massey. 4 The agents did not search or attempt to enter the premises that evening.

The next day a second search warrant authorizing a search of the New Carlisle, Indiana, premises was procured, and on the evening of October 26, DEA agents executed a search of the residence. The defendant, Thomas Nesbitt, who identified himself to agents as Michael Stein (his alias used since 1979), and Ana DaSilva were both present during the search. A search of the attic uncovered a variety of chemicals, lab equipment, and chemistry texts; further, a xerox copy of a chemical formula for the preparation of amphetamine and methamphetamine was recovered from the bedroom. During the search of a kitchen cabinet a one-pint, brown glass bottle containing P2P (a precursor to methamphetamine and a controlled substance) was found. Later testing for fingerprints revealed the presence of the defendant's prints on the bottle. Several documents bearing the name Michael Stein were also confiscated from the house during the search, including one bearing the defendant's picture and the signature "Michael Stein." A Brazilian work permit, as well as payroll stubs from a Brazilian company, listing the employee as Michael Stein, was also found in the house. Massey, the owner of the residential property, testified at trial that sometime after he rented the apartment to Michael Stein, a stove had been moved up to the kitchen from the basement and a ventilating hood for the dispersal of fumes installed over the two stoves now in the kitchen.

During Thomas's trial, Terry Dal Cason, a DEA chemist, testified about the significance of the various chemicals, lab equipment, and other items found during the

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search of the New Carlisle residence. 5 Based upon his observation of the search scene and the various chemicals, lab equipment, and other items located therein, Dal Cason recited that in his opinion the New Carlisle residence was used as a clandestine lab for the production of illegal chemicals. 6 Dal Cason also testified that considering the amount of chemicals found at the New Carlisle lab, the defendant had the potential to produce up to a total of approximately 115,000 individual dosages of methamphetamine.

II. Procedural Background

At the conclusion of their search of the New Carlisle, Indiana, residence on October 26, 1984, the DEA arrested Thomas Nesbitt and filed a one-count complaint charging "Michael Stein" with conspiracy to manufacture methamphetamine. Three days later, on October 29, 1984, the defendant made his initial appearance before a judicial officer, received an explanation of the charges against him, and identified himself to the court as Thomas Nesbitt. Thereafter, the government learned that Nesbitt was wanted in Nebraska on an outstanding warrant for the crime of murder. Consequently, the government moved to dismiss the federal drug charges against the defendant without prejudice, thus allowing the defendant to be tried in Nebraska on the more serious pending state murder charge, prior to his federal drug charge trial. At a hearing on the government's motion to dismiss the federal charges without prejudice, held November 20, 1984, counsel for the defendant expressed her opinion that the government's sole purpose for dismissing the complaint was to halt the running of the Speedy Trial Act clock, allowing the government to refile a complaint or seek an indictment at a later date. The magistrate conducting the hearing stated that if her statements constituted an objection to the government's motion, the objection was overruled. The magistrate granted the government's motion to dismiss the federal charge without prejudice, and the defendant was surrendered to the custody of Indiana state authorities pursuant to Indiana's Fugitive from Justice Act to allow him to answer to the Nebraska authorities on the pending murder charge.

From November 20, 1984, through January 11, 1985, the defendant was held in the custody of Indiana state officials pending hearings on the defendant's challenge to extradition proceedings relating to the Nebraska murder charge. Extradition was granted, and the defendant was conveyed to the custody of Nebraska officials and subsequently convicted on the murder charge. On April 17, 1986, the state of Nebraska sentenced him to a term of life imprisonment.

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Meanwhile, on November 28, 1984, while he was still in the custody of Indiana officials, a Hammond, Indiana, grand jury returned a five-count indictment against the defendant, charging him with violations of 21 U.S.C. Sec. 841(a)(1), 846 and 18 U.S.C. Sec. 1952 (relating to his alleged manufacture of illegal drugs). Subsequently, on December 20, 1984, the government filed an ex parte motion with the federal district court to exclude time under the Speedy Trial Act due to the pendency of the Nebraska state proceedings. The court granted the motion the following day, ordering all the time from the date of the government's motion until the conclusion of the Nebraska proceedings excluded "in the interest of justice" under 18 U.S.C. Sec. 3161(h)(8).

On April 18, 1986, following the defendant's conviction and sentence in Nebraska, the defendant, through his custodial officer, demanded trial on the federal charges. The court issued a Writ of Habeas Corpus ad Prosequendum and set the defendant's initial appearance for May 29, 1986. However, because of problems coordinating his release with Nebraska officials, the United States Marshal notified the government that it would be unable to transport the defendant as originally ordered, and on May 22, 1986, the government petitioned for the issuance of another writ. The court granted the...

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