U.S. v. Devine

Decision Date20 June 1991
Docket NumberNo. 90-8156,90-8156
Citation33 Fed.R.Evid.Serv. 981,934 F.2d 1325
Parties33 Fed. R. Evid. Serv. 981 UNITED STATES of America, Plaintiff-Appellee, v. Robert James DEVINE, Jr., John Leon Robinette, a/k/a John Quigman, Tommy Ward Barker, Veronica Ann Martinez, a/k/a Ronnie, and Irvin Jay Mitzman, a/k/a Irvin Jay Milzman, a/k/a Jay Irvin Mitzman, a/k/a Herman Tilt, and Larry Joseph Cullum, Defendants-Appellants.
CourtU.S. Court of Appeals — Fifth Circuit

Charles Warren McDonald, Waco, Tex. (court-appointed), for Devine.

Linda Gassaway, Waco, Tex. (court-appointed), for Robinette.

John Hurley, Waco, Tex. (court appointed), for Barker.

Walter M. Reaves, Jr., Oak West, Tex. (court appointed), for Martinez.

Kerry P. FitzGerald, Dallas, Tex., W. V. Dunnam, Jr., Waco, Tex., Wm. T. Habern, Riverside, Tex., for Milzman.

Rodney S. Goble, Linda M. Gassaway, Waco, Tex. (court appointed), for Cullum.

Steven L. Snyder, LeRoy M. Jahn, Asst. U.S. Attys., Ronald F. Ederer, U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Western District of Texas.

Before WISDOM, KING and JOLLY, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Six defendants, Robert Devine, Jr., John Robinette, Tommy Barker, Veronica Martinez, Irvin Jay Milzman, and Larry Cullum, appeal their convictions for various offenses arising out of a drug conspiracy that involved over thirty-six participants in a large-scale operation to manufacture and distribute methamphetamine. For the reasons stated below, we affirm in all respects except as to Robinette's conspiracy conviction and sentence, 21 U.S.C. Sec. 846, under count 2 of the indictment, and Cullum's fifteen-year sentence on tax evasion charges, 26 U.S.C. Sec. 7206(1), under counts 25 and 26 of the indictment. We vacate Robinette's conviction and sentence for conspiring to possess with intent to distribute methamphetamine on grounds of double jeopardy. We vacate Cullum's fifteen-year sentence for filing false federal income tax returns and remand to the district court with directions to impose a sentence of three years imprisonment on each count.

I

The facts of this case describe the rise and fall of a large drug enterprise spanning over a decade of continuous illicit activity. For our purposes, we begin in 1983. At that time, Wesley Gerald Schneider was selling precursor chemicals utilized in the manufacture of methamphetamine to Billy McGoy. McGoy, in turn, was selling the precursor chemicals to John Robinette, a known drug dealer and the alleged leader of the drug conspiracy at issue in this case. On November 6, 1983, McGoy introduced Schneider to Robinette, at which time, Robinette confided to Schneider that he had been manufacturing methamphetamine with McGoy and Glen Rogers for a substantial period of time. He then asked Schneider to replace McGoy in his drug business. Schneider agreed, on the condition that his identity not be revealed to any other member of Robinette's organization. Thereafter, Schneider provided precursor chemicals for the manufacture of methamphetamine to Robinette in return for one-fourth of the currency generated from the sale of the drug.

Later, Rogers introduced Robinette to James Magill, who also became a partner in the enterprise. Magill told Robinette that methamphetamine could be manufactured at a 400-acre ranch near Fairfield, Texas, owned by a friend, Larry Cullum. Robinette, Rogers, and Magill met with Cullum and proposed that his ranch be used for the manufacture of the drug. Cullum asked the parties to execute a deer hunting lease so that he would not be implicated in their drug conspiracy. Thus, beginning in January 1983, Robinette, Rogers, and Magill manufactured methamphetamine at Cullum Farms. Magill, who had previously learned how to manufacture methamphetamine, was the original and initial "cook" for Robinette's illegal business. In return for providing the property for the first manufacture, Robinette paid Cullum $15,000.

This first manufacture at Cullum Farms utilized traditional glassware and yielded approximately seventeen pounds of methamphetamine. The conspirators, however, soon discovered that methamphetamine could be manufactured on a much larger basis by using propane hot water heaters. Magill testified at trial that phenylacetone, the immediate precursor chemical in the manufacture of methamphetamine, was manufactured in hot water heaters into which 110 pounds of phenylacetic acid, 70-74 pounds of sodium acetate, and 21 gallons of acetic anhydride would be loaded and cooked for 20-25 hours. The finished methamphetamine powder was heat-sealed in bags utilizing a "seal-a-meal" kitchen appliance. The water heaters had to undergo substantial adaptation for the manufacture of phenylacetone and their use involved a unique technique that permitted Robinette to obtain a 40-pound yield of methamphetamine for every manufacture. This was a large-scale manufacturing technique that had previously been unknown to law enforcement authorities.

Rogers had originated the idea to use the water heaters and had participated in the manufacture of the drug at Cullum Farms on one occasion. However, Rogers began stealing drugs from Robinette and was consequently eased out of the business. He was replaced by Cullum, who was not present at the first manufacture but who at later manufactures took an active role in the operation. Thereafter, Robinette, Cullum, and Magill manufactured methamphetamine at Cullum Farms on several occasions.

In 1983, Robinette asked Daniel Garrett to help finance the methamphetamine laboratory. Robinette had previously borrowed money from Irvin Jay Milzman but their relationship proved to be too volatile and tenuous to sustain steady financial support for the drug operation. Garrett agreed to fund the laboratory in return for a portion of the proceeds.

In 1984 or 1985, Robinette ousted Magill from the drug enterprise because his addiction to methamphetamine caused him to be an unreliable business partner. Robinette then asked Schneider to assist in the manufacturing process. In Magill's absence, the manufacturing yields decreased. In order to correct the manufacturing problems and to improve production, Schneider suggested to Robinette and Cullum that they employ the services of Edward Crawford, who had a doctorate degree in chemistry. At that time, Crawford was in jail awaiting trial on state charges for possession of phenylacetone with intent to manufacture methamphetamine. Robinette, Cullum, and Schneider raised $25,000 to pay Crawford's bond, and Crawford was released from jail on December 31, 1985. Crawford agreed to assist in the manufacturing process, and Schneider paid him $20,000 for his services.

In January 1986, the foursome manufactured 37 pounds of methamphetamine. Three months later, they manufactured 27 pounds. The last known manufacture at Cullum Farms occurred in October 1986, when Robinette, Cullum, and Crawford produced 13 pounds of methamphetamine.

The methamphetamine produced at Cullum Farms was distributed by various individuals. With the exception of Schneider, who let Robinette distribute his share, each of the partners had their own distributors. Robinette sold most of his share to Milzman, who was his largest purchaser, but Robinette had many other distributors, including: Tommy Ward Barker, Jack Ransom Ridge, Robert Devine, Steve Hutchins, and Veronica "Ronnie" Martinez, Robinette's girlfriend. Magill, before being ousted, distributed a portion of his methamphetamine to Danny Williamson, who wholesaled the narcotic to Cecil Calvin Hayes. After Magill was forced out of the business, Williamson obtained the drug from Cullum, who prior to this time allowed Robinette to distribute his share.

The evidence at trial demonstrated that Robinette ran a hierarchical organization, and that he gave gold arrowhead necklaces to associates who were members of the inner circle of the drug conspiracy. Those who owned and wore the necklace included: Robinette, Schneider, Cullum, Magill, Rogers, McGoy, Martinez, Ridge, Barker, and Devine.

As noted earlier, the last known manufacture of methamphetamine at Cullum Farms occurred in October 1986. The manufactures at Cullum Farms abruptly ceased at that time because in November 1986, Magill told Cullum that he had informed law enforcement officials about their drug operation. Magill had been arrested and charged with possession of a machine gun and in November 1986, had begun cooperating with the government as part of a plea bargain agreement. Cullum immediately told the other members of the conspiracy, and they quickly dismantled and destroyed the laboratory at Cullum Farms.

Thereafter, members of the conspiracy met twice at a restaurant in Houston where they discussed stories to explain how they knew one another and their intentions to leave the vicinity. In the early winter of 1987, Schneider and Cullum met at Williamson's office to decide whether to hire a professional assassin to murder Magill, but they ultimately abandoned the plan.

After the termination of the manufactures at Cullum Farms, Robinette introduced Schneider to Terry Lewis. Lewis had supplied Robinette with phenylacetic acid for Cullum Farms on one occasion when Schneider was not able to do so. At Robinette's request, Schneider furnished Lewis with chemicals and glassware to assist Lewis in establishing a methamphetamine laboratory at the old Flying "M" Ranch near Wimberley, Texas. Unlike the laboratory at Cullum Farms, this laboratory used conventional glassware instead of hot water heaters in the drug manufacturing process. In return, Lewis provided both Schneider and Robinette with methamphetamine produced at the Wimberley laboratory.

This second methamphetamine laboratory began operating in 1987 and was closed in 1988. On January 27, 1988, when federal agents raided the ranch, they found a driver's license belonging to Cecil Calvin Hayes. As noted earlier,...

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