U.S. v. Beaumont

Citation972 F.2d 553
Decision Date03 September 1992
Docket NumberNo. 91-4098,91-4098
Parties36 Fed. R. Evid. Serv. 825 UNITED STATES of America, Plaintiff/Appellee, v. Jimmy BEAUMONT, Alvin Paul Brevell, Jr., a/k/a "Junior", Gerald Daniel Beaumont and Johnie Fae Beaumont, a/k/a Johnie R. Meyers, Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Allan R. Lazor, Houston, Tex., (court appointed), for Gerald Beaumont.

Louis Guirola, Jr., Asst. U.S. Atty., Bob Wortham, U.S. Atty., Beaumont, Tex., Thomas E. Booth, Atty., Dept. of Justice, Washington, D.C., for the U.S.

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

Before REYNALDO G. GARZA, DAVIS and BARKSDALE, Circuit Judges.

PER CURIAM:

In this multiple defendant appeal, appellants variously challenge their convictions for conspiracy to manufacture methamphetamine in violation of 21 U.S.C. § 846, possession of precursor chemicals with intent to manufacture methamphetamine in violation of 21 U.S.C. § 841(d)(1) and use of a telephone to facilitate a conspiracy to manufacture methamphetamine in violation of 21 U.S.C. § 843. Finding no reversible error, the convictions and sentences of appellants are in all respects AFFIRMED.

THE FACTS

Appellants Jimmy Beaumont (Beaumont) and his wife Johnie Fae Beaumont (Johnie) regularly purchased chemical glassware and precursor chemicals 1 for use in manufacturing methamphetamine between 1987 and 1989. The purchases were made at a chemical distribution store in Houston, Texas. 2 The owner of the store reported the purchases and, in 1989, agents of the Drug Enforcement Administration (DEA) began an investigation. DEA agent Ed Collins (Collins) instructed the store owner to provide On December 13, 1989, Beaumont phoned Collins and offered to purchase 440 pounds of phenylacetic acid and 50 gallons of methylene for $9,200.00. The next day, Beaumont phoned Collins to discuss the delivery of the precursor chemicals and the market conditions of the availability of other precursors. Finally, on December 15, 1989, Beaumont again phoned Collins and asked to meet him at a truck stop near Houston. Collins suggested the two should meet on the following Monday. The meeting, however, never transpired as Collins was reassigned to another investigation. In his stead was placed DEA Agent Rene Castaneda (Castaneda) and Sgt. Investigator Howard Jake Smith (Smith) of the Texas Department of Public Safety.

Beaumont with Collins' phone number on his next visit, requesting that the owner inform Beaumont that the number belonged to an individual who could provide large quantities of precursor chemicals.

On March 13, 1990, Smith and Castaneda met with appellant Alvin Paul Brevell, Jr. (Brevell) at a restaurant in Orange, Texas. Castaneda posed as a seller of precursor chemicals while Smith adopted the identity of a manufacturer of methamphetamine. Smith and Castaneda offered to sell Brevell 110 pounds of phenylacetic acid in exchange for $4,500.00 and a percentage of the subsequently manufactured methamphetamine. Brevell responded that any deals would have to be approved by Beaumont. He was informed by Castaneda that word of Beaumont's approval of the deal should be transmitted to Smith. Upon completion of this meeting, the parties left the restaurant and, in the parking lot, Castaneda revealed some glassware used in the manufacture of methamphetamine to Brevell. Brevell commented, after smelling the residue contained in the glassware, that he enjoyed the chemical odor.

In April of 1990, appellant Gerald Daniel Beaumont (Gerald), Beaumont's brother, phoned Smith and offered to purchase 440 pounds of phenylacetic acid and 50 gallons of methylene for the price of $16,200.00. Gerald phoned Smith again on April 9, 1990, to arrange a meeting. That same afternoon, Smith, Gerald and Brevell discussed the offer in the parking lot of a grocery store in Orange. During this meeting, Gerald delivered to Smith a piece of paper bearing the name "Jimmy" and containing Beaumont's phone number.

On April 10, 1990, the day after the meeting at the grocery store parking lot, Smith phoned Gerald and informed him that the seller of the chemicals, Castaneda, would contact him shortly to discuss the transaction. Later that same day, Castaneda phoned Gerald and agreed to Gerald's offer. Gerald was informed at this time that Castaneda's younger brother, in actuality DEA Agent Miguel Villafranca (Villafranca), would deliver the chemicals along with Smith. The transaction was later discussed by Smith and Gerald on April 30, 1990 and, on May 1, 1990, Gerald was informed by Smith that the deal had been delayed.

On May 2, 1990, Smith phoned Gerald and informed him the seller had not produced the chemicals. Smith offered to further discuss the purchase with Gerald and the two met that same afternoon at a nightclub owned by Gerald. Smith demanded proof of payment for the chemicals and after Gerald made several phone calls, Beaumont arrived on a motorcycle and displayed before Smith $8,000.00 in cash. Beaumont smelled of precursor chemicals upon presentation of the money. Further discussions between Smith and Gerald occurred on May 3, 1990, and on May 7, 1990, Smith phoned Gerald to inform him the chemicals would arrive the following day. On May 8, 1990, Smith informed Gerald of a minor delay and, later that same afternoon, phoned Gerald again informing him the seller had arrived with the chemicals. Gerald was told to return the call at approximately 5:00 P.M. At approximately 5:15 P.M., Smith told Gerald to meet him at a mini-storage facility in Groves, Texas. Later that same day, Smith and Villafranca sold 110 pounds of phenylacetic acid and two five gallon drums of methylene to Gerald Subsequent to the purchase of the chemicals, Gerald and Brevell transported the goods to a storage facility in Orange. After the two left the area, a search warrant was executed for the warehouse and the chemicals were seized. On May 9, 1990, a search warrant was executed for Beaumont's residence at 705 Suduth Drive, Bridge City, Orange County, Texas. Beaumont was arrested during the execution of the warrant. In addition, agents seized $12,300.00 in cash, various precursor chemicals, 4 drug paraphernalia, 5 chemical glassware and laboratory equipment. That same afternoon, Gerald was arrested in Louisiana and his tote bag was found to contain glassware used in the manufacturing of methamphetamine.

and Brevell at the mini-storage facility. 3

II. DISCUSSION

The appellants raise a variety of issues in this appeal. We address them individually. Any error claimed by any appellant which is not addressed has been held to be completely without merit and is overruled.

A. Rule 41 Compliance

All appellants challenge the validity of the search warrant executed at the home of Beaumont. As an initial matter, we note that Gerald and Brevell have not alleged that they owned or occupied Beaumont's home such that they could establish an expectation of privacy necessary to confer standing under the Fourth Amendment. See Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S.Ct. 421, 425, 58 L.Ed.2d 387 (1978) (defendant lacks standing under Fourth Amendment where defendant has no expectation of privacy in area searched). Thus, we do not address their contentions vis-a-vis the constitutional validity of the warrant.

Beaumont and Johnie raise several issues regarding the validity of the warrant. First, they contend the warrant did not comply with the requirements of Federal Rule of Criminal Procedure 41. This contention is premised upon two assertions: 1) the state judge issuing the warrant, although a judge within the Eastern District of Texas, was not a judge in Orange County, Texas and thus lacked the authority, under the language of Rule 41, to issue the warrant and 2) the agent requesting the warrant was not a "federal agent" as that term is contemplated under Rule 41.

Rule 41, as it existed at the time of the issuance of the warrant in this case, provided, in relevant part:

(a) Authority to Issue Warrant. A search warrant authorized by this rule may be issued by a federal magistrate or a judge of a state court of record within the district where the property or person sought is located, upon request of a federal law enforcement officer or an attorney for the government.

1. Rule 41 Is Confusing

Beaumont and Johnie contend that the language of Rule 41 mandates that if a warrant is to be issued by a state court judge, the judge must be a judge in the state district where the property or person sought is located. It is undisputed that the issuing judge in this case was not from the same state district where appellants Beaumont and Johnie and their home were located. It is also undisputed, however, that the issuing state court judge was in the federal district where the property and persons were located, namely the Eastern District of Texas.

The government, not surprisingly, argues that the language of former Rule 41 refers to the federal district in which the property or person is located. We agree (a) Authority to Issue Warrant. ... a search warrant authorized by this rule may be issued (1) by a federal magistrate, or a state court of record within the federal district, for a search of property or for a person ...

                with the government's position.   The current version of Rule 41 provides
                

There could not be a more plain statement of the state court's authority under the current version of Rule 41. Were the current rule applicable, this matter would be open and shut. We must, however, look beyond this current version to illustrate the conclusion we reach regarding former Rule 41.

The notes of the Advisory Committee on Rules regarding the adoption of the current version of Rule 41 suggest that it represents a clarification...

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