U.S. v. Barnett

• Decision Date: 05 November 1992
• Docket Number: 91-1891,Nos. 91-1890,92-1778,s. 91-1890
• Citation: 989 F.2d 546
• Parties: UNITED STATES of America, Appellee, v. Michael BARNETT, Defendant, Appellant. UNITED STATES of America, Appellee, v. Barry JORDAN, Defendant, Appellant, (Two Cases). . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 546

989 F.2d 546

UNITED STATES of America, Appellee, v. Michael BARNETT, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Barry JORDAN, Defendant, Appellant, (Two Cases).

Nos. 91-1890, 91-1891, 92-1778.

United States Court of Appeals First Circuit.

Heard Nov. 5, 1992.

Decided March 29, 1993.

Gayle C. Wintjen with whom McGuinness & Parlagreco, Boston, MA, was on brief, for appellant Michael Barnett.

George F. Gormley, Cambridge, MA, for appellant Barry Jordan.

Joseph M. Walker III, Asst. U.S. Atty., with whom A. John Pappalardo, U.S. Atty., Boston, MA, was on brief, for appellee.

Before BREYER, Chief Judge, CYR and BOUDIN, Circuit Judges.

CYR, Circuit Judge.

Appellants Michael Barnett and Barry Jordan were charged, in a three-count indictment, with conspiracy to manufacture and possess with intent to distribute methamphetamine in violation of 21 U.S.C. § 846, possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1), and possession of a listed chemical in violation of 21 U.S.C. § 841(d)(1). Barnett was convicted on all three counts at trial; Jordan pleaded guilty to all three counts shortly after the commencement of trial. Each was sentenced to a thirty-year prison term and a ten-year term of supervised release. On appeal, Barnett raises several challenges to his conviction, and joins Jordan in contesting the drug-quantity finding made by the district court at sentencing. We affirm.

I BACKGROUND

In March 1990, the United States Drug Enforcement Agency ("DEA") began investigating a suspected conspiracy to manufacture and distribute methamphetamine. Surveillance was initiated at three sites in the Scituate, Massachusetts area: the residences of each appellant and the residence of their codefendant, Timothy Fitzgerald. ¹

Approximately a year before the investigation began, a trailer storage company had delivered a forty-foot trailer to Fitzgerald's residence in Scituate. The employee who made the delivery later testified that the recipient of the trailer, known to him as "Tim," instructed that the trailer be placed as far back as possible into the woods located on the property. Barnett subsequently rented the trailer from Fitzgerald.

In early May, 1990, undercover DEA Agent John Kelly offered to sell Jordan hydriodic acid ostensibly stolen by Kelly. ² At their meeting, Jordan explained that his "chemist" had enough pseudoephedrine to produce forty pounds (eighteen kilograms) of methamphetamine, but needed twenty pints of hydriodic acid for the manufacturing process. During their tape-recorded conversation, Jordan agreed to buy twenty pints of hydriodic acid, and to provide Kelly with four ounces of methamphetamine in return. Jordan assured Kelly that he would receive four "uncut" ounces, and suggested that Kelly could double the volume by diluting the pure methamphetamine with an equal amount of "cut," then sell the resulting eight ounces for $2,000 an ounce.

Jordan described the methamphetamine manufacturing process to Kelly, explaining that it took seven to eight days, and that his chemist produced ten pounds of methamphetamine in each batch. To allay Kelly's concern about the danger of a laboratory explosion, Jordan explained that his chemist had been manufacturing methamphetamine for ten years, and volunteered that he had assisted the chemist in preparing eight to ten batches one summer. ³

As promised, on May 16, 1990, Kelly delivered two boxes containing twenty half-liter bottles (approximately twenty pints) of hydriodic acid to Jordan. A different DEA agent followed Jordan to Barnett's residence, where he observed Jordan and Barnett unloading two boxes from the trunk of Jordan's car.

The DEA conducted a series of aerial surveillance fly-overs during May 1990. A fly-over of the Fitzgerald residence on or about May 27 revealed an electrical power cord running from the main house to the Two subsequent fly-overs of the Fitzgerald residence were conducted using an infrared heat-detecting device which operates in either of two polarity modes: "white-hot" or "black-hot." When the device is in the white-hot mode, objects emitting heat appear white on an attached screen; in the black-hot mode, heat-emitting objects appear black. The device detected no heat emission from the trailer during a fly-over on May 28. On May 30, Massachusetts State Police Trooper Richard Welby, who had relatively little experience with the infrared equipment, conducted another fly-over. Welby, erroneously believing the device was in the white-hot mode, observed that the trailer appeared white on the screen, and concluded that it was emitting heat. Subsequent analysis revealed, however, that the device actually was in the black-hot mode during the May 30 fly-over, and the infrared images, properly interpreted, indicated that the trailer was emitting no detectable heat.

trailer. (The ephedrine reduction process requires a power source to heat the chemicals.)

On the afternoon of May 30, a DEA agent followed Barnett to the Fitzgerald property. When Barnett disappeared down the driveway, the agent left his vehicle and surreptitiously followed on foot. The agent spotted the trailer and saw Barnett inside. The agent noticed several blue buckets, a white radiator, and two boxes in the rear of the trailer. As the agent watched, Barnett scraped the bottom of one of the blue buckets for approximately five minutes, then poured liquid into the bucket. Barnett left the trailer and entered the main house, returning with several paper towels with which he filtered the yellow slushy contents of the bucket, then poured the filtered substance into a gray painter's tray. Barnett made another trip to the main house, this time returning with clear plastic sandwich bags. He picked up the gray painter's tray, rocked it back and forth several times, then poured the yellow slushy substance into one of the bags, double-bagged it, and returned once again to the main house.

The DEA agent returned to his vehicle, and waited for Barnett to drive away. After about twenty-five minutes, Barnett left the Fitzgerald property and drove to a shopping center, unaware that he was being followed by the agent. When the agent pulled into the shopping center parking lot, he noticed a second individual in Barnett's vehicle. The agent identified the second individual as appellant Jordan.

On May 30, DEA Agent Lemon compiled the information obtained from the various surveillance operations (including the erroneous heat-imaging data interpretation) in an affidavit, which he attached to an application for a warrant to search the trailer on the Fitzgerald property, the Fitzgerald and Jordan residences, and a residence believed to be occupied by Barnett.

The investigation culminated early the next morning when the search warrants were executed. First, agents searched the Fitzgerald trailer, unveiling a partially assembled laboratory containing an array of chemicals, including hydriodic acid, acetone, freon, and hydrogen chloride gas, and an assortment of equipment associated with methamphetamine production, including a radiator, a fan, flasks, tubes, and a heater-timer. Three ounces of methamphetamine crystals and a bucket containing approximately one pound of methamphetamine crystals in two and one-half pounds of an acetone/freon solution were also discovered. Subsequent analysis determined that the methamphetamine found in the bucket was between 90 and 100 percent pure.

DEA agents arrested Jordan and Fitzgerald at their respective residences. At Jordan's residence, agents seized a small quantity of a mixture containing heroin and methamphetamine, as well as a valium tablet, several hypodermic needles, and several publications describing the methamphetamine manufacturing process. At Fitzgerald's residence, agents found a piece of paper listing the chemical ingredients needed to produce methamphetamine using the ephedrine reduction process ("the Fitzgerald chemical list").

Barnett no longer resided at the residence for which the fourth search warrant had been obtained. When DEA agents arrested Barnett at his new residence, he was advised of his Miranda rights and that the laboratory had been discovered at the Fitzgerald property. Agents searched Barnett's new residence, ⁴ and discovered a warehouse receipt. In response to a question from Agent Lemon about the receipt, Barnett revealed that the remaining equipment and chemicals were in a storage bin at the warehouse. A warrant was secured and the search of the storage bin uncovered approximately fifteen pounds of red phosphorous, a seventy-pound drum containing an unspecified quantity of hydriodic acid, a fifty-kilogram container of pseudoephedrine slightly less than half full, and various other chemicals, glassware, cooking devices, protective gear and gloves.

At DEA headquarters, after determining that Barnett had been advised of his Miranda rights, DEA agent Boeri engaged Barnett in conversation about the methamphetamine operation. In response to Boeri's questions, Barnett admitted that he was the "chemist," indicated that he had experienced no difficulty obtaining chemicals, and explained that his methamphetamine was "ninety nine and one percent" pure as a consequence of the two "extra" manufacturing steps he performed.

Five days into their joint trial, Jordan pleaded guilty to all counts. Thereafter, the jury convicted Barnett, and acquitted Fitzgerald, on all counts.

II DISCUSSION

A. Sentencing Issues

Barnett and Jordan challenge the sentencing court's determination that each was responsible for twenty-nine kilograms of pure methamphetamine. Jordan alone contests the court's drug purity ruling. We review for clear error, see 18 U.S.C. § 3742(e); United States v. Panet-Collazo, 960 F.2d 256, 262 (1st Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 220, 121 L.Ed.2d 158 (1992); United States v. Weston, 960 F.2d 212, 220 (1st Cir.1992), with a view to whether...