U.S. v. Atkins, 86-1610

• Decision Date: 08 December 1987
• Docket Number: No. 86-1610,86-1610
• Citation: 834 F.2d 426
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard Lee ATKINS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 426

834 F.2d 426

UNITED STATES of America, Plaintiff-Appellee, v. Richard Lee ATKINS, Defendant-Appellant.

No. 86-1610.

United States Court of Appeals Fifth Circuit.

Dec. 8, 1987.

Richard L. Atkins, pro se.

Michael S. McDonald, Asst. U.S. Atty., Helen M. Eversberg, U.S. Atty., El Paso, Tex., for plaintiff-appellee.

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

Before RANDALL, WILLIAMS and GARWOOD, Circuit Judges.

RANDALL, Circuit Judge:

Defendant appeals pro se the district court's order denying his motion to correct an illegal sentence. Defendant filed the motion after he pled guilty in the Western District of Texas to one count of conspiracy to manufacture amphetamine and after he received, for his plea, a four-year sentence. In his motion to the district court, defendant explained that just prior to entering his plea in Texas, he pled guilty and received a four-year sentence in Oklahoma for conspiring to manufacture phenylacetone and amphetamine. According to defendant, the conspiracy made the subject of the Texas indictment was the same conspiracy on which the Oklahoma indictment focused. Since he is already serving time in Oklahoma for that conspiracy, defendant argued, his Texas sentence subjects him to double jeopardy in violation of the United States Constitution and must be vacated--regardless of his guilty plea. The district court disagreed; it determined from the record before it, and without conducting an evidentiary hearing, that the Texas and Oklahoma indictments charged two separate conspiracies. We cannot, however, agree with the district court that the record in this case is so clear. Because a more detailed analysis of the two conspiracy charges against defendant is needed before his double jeopardy claim can be resolved, we therefore return his claim to the district court for an evidentiary hearing.

I. FACTS AND PROCEEDINGS BELOW

Richard Lee Atkins ("Atkins") was indicted on June 7, 1983, and charged with five separate violations of the Controlled Substances Act, 21 U.S.C. Sec. 801 et seq. Count one of the indictment charged: ¹

That from on or about April, 1982, and continuously thereafter up to and including April 13, 1983, in the Western District of Oklahoma, the Northern District of Texas, and elsewhere

Richard Lee Atkins;

Joe Dewayne [sic] Snyder;

Roger Ray Helvy;

Leiann Lynda Gill; and

Kenneth Randle Gill;

the defendants herein, willfully and knowingly did combine, conspire, confederate and agree together, with each other, and with diverse other persons whose names are to the Grand Jury unknown, to manufacture Phenylacetone and Amphetamine, Schedule II non-narcotic controlled substances, in violation of Title 21, United States Code, Section 841(a)(1).

The count continued by alleging several overt acts which the defendants were to have committed in furtherance of the conspiracy, and concluded that by conspiring to manufacture phenylacetone and amphetamine, the defendants violated Title 21, section 846 of the United States Code. The indictment was issued by a grand jury in the Western District of Oklahoma ("Oklahoma indictment"). Seven weeks later, a grand jury in the Western District of Texas issued a two count indictment against Atkins, also charging him with Controlled Substances Act violations ("Texas indictment"). Count one of the Texas indictment charged: ²

That beginning on or before March 30, 1983, and continuing until April 12, 1983, in the Western District of Texas and divers other places to the grand jurors unknown, Defendant,

Richard Lee Atkins,

and other persons to the grand jurors known and unknown, unlawfully, willfully, and knowingly did combine, conspire, confederate and agree together and with each other manufacture amphetamine, a Schedule II Controlled Substance, contrary to Title 21, United States Code, Section 841(a)(1) and in violation of Title 21, United States Code, Section 846.

No overt acts were alleged in the Texas indictment.

With two indictments and seven counts pending against him, Atkins decided to plea bargain. In Oklahoma, Atkins agreed to plead guilty to counts one and three of the Oklahoma indictment in exchange for the government's dismissal of counts two, four, and five. On September 9, 1983, therefore, Atkins was given four-year consecutive sentences on each of counts one and three. After being sentenced in Oklahoma, Atkins was transferred to Texas where he plea bargained the Texas indictment. This time, Atkins pled guilty to count one in exchange for dismissal of count two. Before accepting Atkins' plea at his Rule 11 hearing, the district court asked the government what it was prepared to prove against Atkins. The government responded that it was prepared to prove that:

[B]eginning on or before March 30, 1983, and continuing until on or about April 12, 1983, in the Western District of Texas, and in the Odessa-Midland area, the defendant and others to the Grand Jury at the time unknown conspired to manufacture amphetamines. Pursuant to this conspiracy the defendant and others obtained the chemicals necessary for the manufacture of amphetamine, set up a laboratory apparatus in the ... Odessa area, an individual by the name of Kim Dansby allowed her home to be used for a stage of the process, the drying stage, or final stage which produced the amphetamine; that in connection with the conspiracy amphetamine was, in fact, manufactured; that there was an accident at the house; that Government agents became involved at that time, a Government chemist examined the apparatus and the residues found as a result of the involvement of the house owned or occupied by Kim Dansby at the time and determined that the apparatus was capable of making amphetamine of approximately kilograms, or kilo quantities at any given time and that there were residues and traces of produced amphetamines in the glassware that was at the house used by the defendant and Ms. Dansby at the time that they were drying or finalizing the production of the amphetamine.

On November 9, 1983, Atkins was sentenced to four years on his plea to the Texas indictment; the district court imposed the sentence to run consecutively to the sentences imposed on Atkins in Oklahoma.

Atkins took no appeal from either plea. Instead, two and one-half years later, Atkins filed in Texas a motion to correct an illegal sentence pursuant to Rule 35 of the Federal Rules of Criminal Procedure. In his motion, Atkins argued that the sentence he received as a result of the Texas indictment and subsequent plea bargain placed him in double jeopardy and, therefore, violated the fifth amendment to the United States Constitution. As Atkins explained it, he was sentenced in Texas for the substantive offense of conspiracy to manufacture amphetamine. The first of the two offenses for which he was earlier sentenced in Oklahoma, however, was also a conspiracy offense--conspiracy to manufacture amphetamine and phenylacetone. ³ According to Atkins, a comparison of the facts underlying the conspiracy charge in the Texas indictment and the facts underlying the conspiracy charge in the Oklahoma indictment demonstrates that both indictments focused on the same conspiracy. To support his contention that the two charged conspiracies were in fact only one actual conspiracy, Atkins appended to his motion investigative documents prepared by the government in connection with both the Texas and Oklahoma indictments.

The most informative document from the Texas investigation is a report of investigation filed by Special Agent to the Drug Enforcement Administration ("DEA"), Fred E. Moore ("Moore"). Moore's report details information he obtained from undercover DEA Special Agent John E. Coonce ("Coonce") and from local police investigators. Together, this information suggests a story which unfolded on March 30, 1983 in a house in Odessa, Texas. The report indicates that on that date, Atkins was manufacturing amphetamine at an Odessa, Texas residence that belonged to Kim Dansby ("Dansby"). The report explains that after manufacturing approximately twelve ounces of amphetamine, Atkins was in the process of disposing of twelve liters of ether when he received a phone call from some friends. The friends were supposed to be out selling the recently manufactured amphetamine; however, their car had broken down and, at the time of the phone call, they were stranded on a main street in Odessa which was heavily patrolled by the police. Atkins promptly abandoned his attempt to dispose of the ether, and left the house to rescue his friends.

When he and his friends returned later, however, they discovered that an explosion had occurred in their absence. The report speculates that after Atkins left, Dansby decided to dispose of the ether herself. Somehow, the ether was ignited and the house exploded, killing Dansby and badly burning her six-year-old daughter who was asleep in a back room. When Atkins and his friends discovered the explosion, they retreated in a pickup truck which was parked behind the house. Just who Atkins' "friends" were is not disclosed in the report. However, immediately after the explosion, the police noted the license plate of the pickup truck; the police later determined that the truck was owned by Kenneth Gill. Approximately one week after the explosion, the report continues, Atkins purchased new chemicals and glassware--apparently to replace those lost in the explosion. These supplies were purchased from Coonce at the Metroplex Chemical Company, which is located in Dallas, Texas. On April 12, 1983, Atkins bought additional supplies from Coonce. This time when he made his purchases, Atkins was accompanied by Leiann Lynda Gill, the wife of Kenneth Gill. According to the reports, Leiann Gill told Coonce that she was helping Atkins manufacture the amphetamine. The report suggests that Moore and another special agent intended to follow Atkins as he left the Metroplex...