927 F.2d 1272 (2nd Cir. 1991), 593, United States v. Macklin

Docket Nº:593, 594, Dockets 89-1245, 89-1246.
Citation:927 F.2d 1272
Party Name:UNITED STATES of America, Appellee, v. Calvin MACKLIN, Jr. and Arthur Garfield Swain, Defendants-Appellants.
Case Date:March 14, 1991
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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927 F.2d 1272 (2nd Cir. 1991)

UNITED STATES of America, Appellee,

v.

Calvin MACKLIN, Jr. and Arthur Garfield Swain, Defendants-Appellants.

Nos. 593, 594, Dockets 89-1245, 89-1246.

United States Court of Appeals, Second Circuit

March 14, 1991

Argued Feb. 23, 1990.

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David Gerald Jay, Buffalo, N.Y., for defendant-appellant Calvin Macklin, Jr.

David A. Lewis (The Legal Aid Society, Federal Defender Services Unit, New York City, of counsel), for defendant-appellant Arthur Garfield Swain.

Susan M. Barbour, Asst. U.S. Atty. (Dennis C. Vacco, U.S. Atty., Paul J. Campana, Asst. U.S. Atty., W.D.N.Y., Buffalo, N.Y., of counsel), for appellee.

Before LUMBARD, MINER, and MAHONEY, Circuit Judges.

MAHONEY, Circuit Judge:

Defendants-appellants Calvin Macklin, Jr. ("Macklin") and Arthur Garfield Swain ("Swain") appeal from judgments of conviction entered in the United States District Court for the Western District of New York, Richard J. Arcara, Judge, after a jury convicted them of conspiring to manufacture a substance containing phencyclidine ("PCP") 1 in violation of 21 U.S.C. Sec. 846 (1988). Macklin contends on appeal that the indictment provided him with inadequate notice of the charge against him. Swain challenges the sufficiency of the evidence against him. He also asserts that at a sentencing hearing, the burden of proof as to the object of an uncompleted conspiracy should be higher than a preponderance of the evidence. Both claim that the trial court made clearly erroneous findings, in connection with sentencing, as to the quantity of pure PCP that Macklin and Swain could have produced from the chemicals found in their possession.

For the reasons that follow, we affirm the judgments of conviction.

Background

During the evening of April 20, 1988, Macklin travelled from Buffalo, New York to New York City with Robert Yanders and Yanders' girlfriend, Betty Kendrick, in Kendrick's van. A week earlier, Macklin had asked Yanders to join him on the trip. Kendrick accompanied them because she wished to see New York.

Yanders drove the van, receiving directions along the way from Macklin. The three arrived in New York the morning of April 21. They stopped for breakfast, then went to a hotel where Yanders and Kendrick checked into a room. Macklin gave Kendrick the money to pay for the room, but remained behind in the van.

Some time later, while Yanders and Kendrick were watching television in the room, Macklin entered. Eventually, Macklin and Yanders returned to the van and drove away. Once again, Yanders was at the wheel, following Macklin's directions. After driving for fifteen to thirty minutes, they arrived in the vicinity of a collision shop, where Macklin told Yanders to park. Macklin got out, and Yanders waited in the van. Macklin returned with a man not known to Yanders. Each was carrying a white box, and they loaded the boxes in the back of the van. Macklin got back into the van, and he and Yanders returned to the hotel.

At the hotel, Macklin gave Yanders $80.00 for the trip back to Buffalo, then left in a cab. At an earlier point, however, Macklin had given Yanders a phone number, accompanied by the names "Shirley" and "Fats," and instructed Yanders to call that number upon returning to Buffalo. Some time later, Yanders and Kendrick checked out of the hotel and began their journey back to Buffalo. During the trip, Yanders noticed a heavy industrial smell

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inside the van; the smell, he later testified, was "[k]ind of like Lackawanna." Although the weather was cool, he kept the windows open.

At approximately 1:00 a.m. on April 22, Yanders and Kendrick reached the Williamsville toll area on the New York State Thruway near Buffalo. There, agents of the Drug Enforcement Administration ("DEA") and police officers, who had information which caused them to be on the lookout for the van, stopped the van and asked Yanders and Kendrick to get out. The agents verified that Kendrick was the owner of the vehicle, and obtained her consent to a search.

In the course of executing the search, the agents found two white boxes marked "J.T. Baker," recognized by one of the agents to be the name of a chemical manufacturer. The boxes emitted a "strong smell of chemicals." The agents spoke with both Yanders and Kendrick, and ultimately asked Yanders if he would "assist ... in [the] investigation at that point, and continue with the delivery of the chemicals." Yanders agreed. The agents then formulated a plan for carrying out the controlled delivery. Pursuant to the plan, the agents followed Yanders and Kendrick to their residence, located at 55 Reed Street in Buffalo.

At the residence, Yanders permitted an agent to attach a tape recorder to the telephone in order to monitor conversations with Macklin. The agent instructed Yanders to try to get Macklin to agree that Yanders would deliver the boxes to Macklin that night. Yanders then phoned Macklin three times at Macklin's home telephone number. During the third conversation, Macklin agreed to have Yanders bring the boxes in the van to Macklin's house. By then it was approximately 3:00 a.m.

Yanders then drove the van to Macklin's residence at 520 Broadway, and knocked at the door. Macklin answered. After speaking briefly, the two men went to the van, retrieved the two white boxes, and placed them in the trunk of Macklin's car, a white Buick automobile parked nearby. Macklin went back inside 520 Broadway, and Yanders drove the van back to 55 Reed Street.

Several hours later, at approximately 7:00 a.m., Macklin came out of 520 Broadway and got into the Buick, which the agents had been surveilling. He then drove to 62 Fox Street in Buffalo, the residence of Swain, parked, and walked to the back of the building. Five to ten minutes later, Macklin returned to the car and drove to a restaurant. He stayed at the restaurant only a short time, then returned to 62 Fox Street and backed into the driveway.

Some time later, Macklin, accompanied by Swain, drove the Buick from 62 Fox Street to 880 Broadway, and went into the building at the latter address. When they emerged shortly thereafter, Swain was carrying a box. Swain and Macklin placed the box in the trunk, then drove back to 62 Fox Street. Macklin again backed into the driveway, the trunk of the Buick was opened, and one of the two men was observed by a surveilling Buffalo city detective carrying a box toward the rear of the house. Ten to fifteen minutes later, Macklin and Swain got back into the Buick, drove to 520 Broadway, and entered that building.

Within a few minutes, a man later identified as Dwayne King came out of 520 Broadway and drove the Buick to Fox Street. He parked near the intersection of Fox Street and Broadway, got out, and walked through several yards in a direction away from Fox Street. He returned approximately five minutes later carrying a green duffel bag, then drove up Fox Street to number 62.

Juanita Sebastian, who lived from time to time at 62 Fox Street with Swain, was standing in front of the house when King drove up. She flagged him down and asked him to give her a ride to work. King gave her the green bag, which she carried into the house and placed on the kitchen table. She returned to the car, and she and King began driving down Fox Street.

DEA agents then stopped the car and spoke with King and Sebastian. In response to questions concerning activity at

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62 Fox Street, Sebastian confirmed that Macklin and Swain had carried some boxes into the house that morning. The agents told Sebastian that they believed those boxes contained dangerous chemicals to be used for the manufacture of drugs, and asked for her consent to search the house. She agreed, and let the agents into the house. Inside, Sebastian told the agents that she believed the boxes had been placed in the attic, which was the second floor of the house, and they proceeded to the attic.

The attic was a large, open room with several tables. It had a "very heavy chemical smell." There were four boxes on the floor, and a fifth sitting on one of the tables. Among these were the two white boxes that Yanders and Kendrick had transported from New York. On the tables and in the boxes, at least two of which were open, were containers of hydrochloric acid, bromobenzene, ether, ligrione, sodium bisulfite, sodium metabisulfite, sodium cyanide, and other chemicals. There was also in the attic a plastic bag holding various paraphernalia such as sifters, bowls, beakers, spoons, and a mask.

The agents found a large mason jar inside a bowl, in which there was also some white residue, in the kitchen of the house. They also found the green duffel bag there; it contained another mason jar and a scale.

While the agents were in the house, the telephone rang; apparently both Sebastian and King spoke with the caller. King told agents that the caller was Swain, and that Swain had instructed King to bring the Buick back to 520 Broadway. An agent got into the back of the Buick to accompany King, and other surveillance units followed in separate vehicles. When King arrived at 520 Broadway, Macklin and Swain emerged and were arrested. Both men were then driven back to 62 Fox Street, and then to the Buffalo office of the DEA. One agent sitting in a closed car with them noticed a "heavy chemical, ether-type smell in the vehicle ... coming from Mr. Swain and Mr. Macklin."

At the DEA office, Macklin and Swain were placed in a room in the cell area. Several days later, an agent found two pieces of paper in the same room; the paper "contained the names of chemicals and ... appeared to contain some type of formula for the manufacture of PCP." Macklin's fingerprint was found on one of the papers.

On May...

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