919 F.2d 1403 (10th Cir. 1990), 89-7005, United States v. Sullivan

Docket Nº:89-7005 and 89-7008 to 89-7012.
Citation:919 F.2d 1403
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Russell SULLIVAN; Mary Ann Sullivan; Eugene Lewis Fisher; Tammy Lawan Sullivan, also known as Tammy Sullivan Fisher; Steve Brown, also known as Steve Morgan; Jimmy Roger Wright, also known as Whiskers, Defendants-Appellants.
Case Date:November 16, 1990
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1403

919 F.2d 1403 (10th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,

v.

Russell SULLIVAN; Mary Ann Sullivan; Eugene Lewis Fisher;

Tammy Lawan Sullivan, also known as Tammy Sullivan Fisher;

Steve Brown, also known as Steve Morgan; Jimmy Roger

Wright, also known as Whiskers, Defendants-Appellants.

Nos. 89-7005 and 89-7008 to 89-7012.

United States Court of Appeals, Tenth Circuit

November 16, 1990

        Rehearing Denied Feb. 22, 1991.

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        D.D. Hayes of Bonds, Matthews, Bonds & Hayes, Muskogee, Okl., for defendants-appellants Russell Sullivan, Eugene Fisher and Jimmy Roger Wright.

        Peter Goldberger (Alan Ellis, Pamela A. Wilk and James H. Feldman, Jr., Philadelphia, Pa., were with him on the brief), for defendants-appellants Mary Ann Sullivan, Tammy LaWan Sullivan and Steve Brown.

        Sheldon J. Sperling, Asst. U.S. Atty. (Roger Hilfiger, U.S. Atty., Muskogee,

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Okl., was with him on the brief), for plaintiff-appellee.

        Before HOLLOWAY, Chief Judge, TACHA, Circuit Judge, and VAN BEBBER, [*] District Judge.

        HOLLOWAY, Chief Judge.

       I.

        These consolidated appeals are from convictions and sentences following a jury trial of six codefendants for various drug and other offenses. The defendants--members of an extended family, and one friend of the family--were charged in an eight-count indictment as follows:

        Count 1 charged a conspiracy among the six defendants between September 1985 and May 1986 to manufacture amphetamine, to possess and distribute amphetamine, and to use firearms in the commission of these offenses, all in violation of 21 U.S.C. Sec. 846. Count 2 charged the six defendants with a separate conspiracy between May 1988 and July 20, 1988, with the same three objectives.

        Count 3 charged all defendants but Steve Brown with attempting to manufacture amphetamine on July 20, 1988, in violation of 21 U.S.C. Sec. 846. Count 4 charged all the defendants with using or carrying firearms during the second conspiracy, in violation of 18 U.S.C. Sec. 924(c). Count 5 charged Russell and Mary Sullivan with possessing an unregistered firearm on July 20, 1988, in violation of 26 U.S.C. Sec. 5861(d).

        Count 6 charged Russell and Mary Sullivan with cultivating approximately 60 marijuana plants, on July 20, 1988, in violation of 21 U.S.C. Sec. 841(a)(1). Counts 7 and 8 charged Russell Sullivan alone with being a felon in possession of two specified firearms on that date, in violation of 18 U.S.C. Sec. 922(g).

        Russell Sullivan, Mary Ann Sullivan, Steve Brown, and Eugene Lewis Fisher were found guilty on all counts with which they had been charged. Tammy LaWan Sullivan Fisher was convicted on Counts 1 and 2 (the conspiracies), but was acquitted on Counts 3 and 4 (attempted manufacture and use of a firearm count). Jimmy Roger Wright was acquitted on Count 1, but was convicted on Counts 2, 3, and 4. The court sentenced the defendants to terms of imprisonment ranging from thirteen to twenty-five years, and imposed $50 special assessments and periods of supervised release.

        The defendants present numerous issues on appeal. We address those which are dispositive or are likely to recur. We reverse and remand for a new trial and direct the dismissal of some charges.

       II.

        The genesis of this case is a 1988 cooperation agreement among Melvin Ray Rogers, his wife Evelyn, their son Steve Howell, and the government. Melvin Rogers had been convicted four months earlier of four drug related felonies, and agreed to cooperate with the government in return for the government's promise not to prosecute Rogers' wife and son, and to assist Rogers with a Rule 35 motion in connection with his conviction. 1

        Oklahoma Bureau of Narcotics and Dangerous Drugs Agent Fred Means and DEA Agent Doc Shannon extensively interviewed the Rogers family regarding their prior drug activities. During those interviews, the Rogers implicated members of the Sullivan family in six amphetamine "cooks" between September 1985 and May 1986. (A "cook" is loosely defined as the synthesis from various chemicals of a controlled substance, here amphetamine.) 2

        The agents decided to investigate the Sullivan family and, in May or June 1988,

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sent Evelyn Rogers to the Sullivan home to "see what they were up to." XIII R. at 975. At trial Evelyn Rogers testified that when she arrived at the Sullivan house, she saw boots by the door that smelled like amphetamine. X R. at 322-23. She offered to sell the Sullivans leftover chemicals from their earlier cooks, and, according to Evelyn, Mary and Russell Sullivan instead expressed an interest in using the chemicals to manufacture more amphetamine to make more money. Id. at 323. A week or two later, the Sullivans invited Evelyn to return to the Sullivan house for a weekend. Evelyn testified that on that occasion they discussed setting up a drug lab. Id. at 326-27. According to Evelyn, Russell and Mary Sullivan said they needed "the whole set up, mantle, jug, condenser ... and 55 pounds of [phenylacetic acid]." The Sullivans "said they had everything else." Id. at 329. Evelyn told them she could get the necessary materials.

        Mrs. Rogers obtained the needed materials from the case agents and arranged to meet Mary and Russell Sullivan at a motel in Antlers, Oklahoma, to discuss delivery. On July 2, 1988, Evelyn Rogers delivered the glassware furnished by the government agents to the Sullivans' garage. Evelyn testified that she helped Russell and Mary Sullivan hide the glassware behind the Sullivans' home in the weeds and bushes. The following day, Evelyn called Russell Sullivan from a motel in Antlers. She asked if he could meet her at the motel room. Russell agreed, and he and Mary drove to Antlers where they met with Evelyn Rogers and her son, Steve Howell. The conversation between the two codefendants and two informants was recorded. 3 During the conversation the participants discussed previous cooks, certain difficulties they had had with Eugene Fisher, prospects of getting Melvin Rogers out of jail to do a big cook, the events of the previous evening, and a prospective location for the cook they were planning.

        Approximately a week later, Russell and Mary Sullivan went to Irving, Texas, to meet with Steve Howell and Evelyn Rogers concerning their efforts to obtain the phenylacetic acid. According to Evelyn, Russell had in his possession a "clip" that "he could drop in his AR-15 in just a matter of seconds." X R. at 375-76. Russell said "it would rock and roll then." Id.

        On July 18, 1988, Agent Means provided Steve Howell with 55 pounds of phenylacetic acid which Howell then delivered to the Sullivan home. XIII R. at 989. Howell spent that night with the Sullivans at their home. The following morning, Steve Howell and Russell Sullivan weighed the phenylacetic acid in the Sullivans' garage and then, accompanied by Mary Sullivan, went to Steve Brown's house where they examined some "cut" that they planned to use to dilute the product. The three men then loaded Steve Brown's trailer with clothes and groceries, went to pick up the chemicals, and then went to invite Eugene Fisher and Jim Wright to participate. Wright later arrived with five gallons of "a chemical." Id. at 545. Meanwhile, Russell Sullivan and Steve Howell went to a nearby Wal-Mart to buy duct tape and electrical plugs, and then returned to the Sullivan house. Sullivan and Howell made one more trip to Steve Brown's house to pick up the glassware and chemicals which they then loaded into Russell Sullivan's truck. Steve Howell, Russell Sullivan, and Steve Brown then drove to Jack Brown's barn, some eight to ten miles from the Sullivans' home, where they then unloaded the truck and began setting up the drug laboratory in the barn.

        Howell testified that Eugene Fisher and Jimmy Wright then arrived at the lab site with two five-gallon cans. Howell said that Russell Sullivan and Steve Brown hooked up the electrical panel board in the barn while Fisher and Wright began putting the phenylacetic acid into the jugs that were already set up.

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        Eugene Fisher and Jimmy Wright both claimed at trial that they were tricked into coming to the lab site. Fisher testified that on July 19, at dusk, Howell appeared at his home to see if he wanted to go riding around. Howell and Fisher then picked up Jimmy Wright who testified that Howell asked him to assist him in working on a car. Both Fisher and Wright testified that Howell then drove the vehicle to the scene of the lab site where, to their surprise, Howell advised them that he was going to make dope. They testified that Howell supervised and set up the drug laboratory and then asked Fisher and Wright if they would stay and watch the lab while Howell ran an errand. Fisher and Wright testified that they attempted to leave the lab site, but were unable to start the car left there by Howell. They testified that because they were left without transportation, they spent the night in a small trailer near the barn. The following morning, the lab site was raided by several law enforcement agents at which time Russell Sullivan, Eugene Fisher, and Jim Wright were arrested. Steve Brown had left the night before with Steve Howell, and was arrested the following day. Mary Sullivan and Tammy Fisher were arrested at the Sullivan home.

        Officers raided the drug lab site and the residences of Russell and Mary Sullivan and Steven Brown pursuant to search warrants obtained from a state court. An additional warrant for a search of the Fishers' residence was secured later that afternoon. Substantial evidence was seized as a result of the searches: controlled substances...

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