U.S. v. Blakeney

• Decision Date: 23 August 1991
• Docket Number: Nos. 90-5664,90-5665 and 90-6041,s. 90-5664
• Citation: 942 F.2d 1001
• Parties: 33 Fed. R. Evid. Serv. 1362 UNITED STATES of America, Plaintiff-Appellee, v. Roy C. BLAKENEY (90-5664), Kenneth A. Kutnyak (90-5665), and James E. Box (90-6041), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1001

942 F.2d 1001

33 Fed. R. Evid. Serv. 1362

UNITED STATES of America, Plaintiff-Appellee, v. Roy C. BLAKENEY (90-5664), Kenneth A. Kutnyak (90-5665), and James E. Box (90-6041), Defendants-Appellants.

Nos. 90-5664, 90-5665 and 90-6041.

United States Court of Appeals, Sixth Circuit.

Argued May 6, 1991.

Decided Aug. 23, 1991.

Louis DeFalaise, U.S. Atty., Jane E. Graham, Asst. U.S. Atty. (argued and briefed), Lexington, Ky., for U.S.

Frederick F. Cohn (argued and briefed), Chicago, Ill., for Roy Creighton Blakeney.

Lee W. Rowland (briefed), Michael T. Palermo (argued), Lexington, Ky., for Kenneth Alex Kutnyak.

Oscar B. Goodman (argued and briefed), Las Vegas, Nev., for James Edward Box.

Before KEITH and BOGGS, Circuit Judges, and WELLFORD, Senior Circuit Judge.

KEITH, Circuit Judge.

Roy C. Blakeney ("Blakeney"), Kenneth Kutnyak ("Kutnyak") and James Box ("Box") (collectively "defendants") appeal their convictions for drug trafficking. For the reasons set forth below, we AFFIRM their convictions and sentences.

I. INTRODUCTION

A. The Facts

1. The Minnesota Transactions

In 1982, Kutnyak approached James Weiss ("Weiss"), who had been selling heroin in Milwaukee, and proposed to enter into a cocaine trafficking partnership with Kutnyak and William Wolk ("Wolk"). Weiss agreed and began regularly transporting cocaine from Florida with Kutnyak. Typically, Kutnyak and Weiss purchased three to four kilograms of cocaine in Florida, sold it in Milwaukee and delivered the proceeds to Wolk or another partner, Sam Fragale, in Minnesota. As a result of an ongoing grand jury investigation, Kutnyak began delivering the cocaine proceeds to Box at his flower shop in Minneapolis.

Because they feared the heightened investigation of cocaine trafficking, Kutnyak and Wolk proposed to diversify their business and sell methamphetamine. According to the plan, Box would distribute the methamphetamine through his connections with the Hell's Angels, a motorcycle gang.

Kutnyak travelled to southeast Asia twice to purchase the methamphetamine precursor chemicals, using the profits from the cocaine sales. Kutnyak transported five or six fifty-five-gallon drums of phenylacetone and stored them in a business establishment he owned in Minnesota.

The attempts to produce methamphetamine in Roseville, Minnesota, a Minneapolis suburb, were unsuccessful. Weiss eventually learned that the laboratory had been moved "south." In the fall of 1985, Kutnyak informed Weiss that Kutnyak was still investing in the lab without achieving satisfactory results. Kutnyak indicated that his involvement with Blakeney, who led a burglary crew, prevented him from being as involved in the methamphetamine business as he desired.

In 1985, Darryl Petchen ("Petchen"), a methamphetamine addict who had been involved in drug trafficking, was released from prison. After his release, Petchen contacted his friend, Chuckie Mussehl ("Mussehl"). Mussehl and Petchen had transported cocaine for Wolk in 1980 and 1981. During the same period, they had transported marijuana from Arizona to Minneapolis for Box. Petchen learned that Mussehl was transporting marijuana for Box. Mussehl asked Petchen to become involved in a methamphetamine lab run by Wolk and Kutnyak. Petchen declined to become involved in the manufacturing process but agreed to provide a recipe and instructions on how to manufacture the methamphetamine.

Mussehl, Box and Petchen met and discussed the recipe, its price and the quality of its product. They agreed upon a total price of $25,000 to be paid to Petchen for the recipe--$12,500 upon delivery of the recipe and an additional $12,500 when the methamphetamine was produced. Several days later, Kutnyak, Box and Petchen met at Box's home to discuss the recipe further. Petchen learned, at this meeting, the size of the methamphetamine manufacturing operation. Petchen learned that the phenylacetone was stored in five blue barrels. This description matched the barrels later found in the lab and in the National Stor-All Mini Warehouse in Louisville.

Box contacted Petchen and arranged a meeting between Petchen and Wolk. Box brought Petchen to a parking lot where Petchen gave Wolk a set of typed instructions for producing methamphetamine and an Ace Glass catalog of chemical glassware. At this meeting, Wolk again asked Petchen to go to Kentucky to help in the lab. Petchen declined. Wolk then gave Petchen the initial payment of $12,500.

2. The Kentucky Methamphetamine Laboratory

Herbert Spencer ("Spencer") renovated a portion of his auto repair garage and constructed a methamphetamine laboratory during the summer and early fall of 1985. The renovated area was divided into an apartment, storage area, manufacturing area and drying room. The manufacturing area contained a large exhaust fan to vent the fumes accompanying the methamphetamine production process. The drying room contained dehumidifiers and industrial pumps for the purification and drying processes. The windowless apartment was furnished with a living room, kitchen, bath and bedroom, thereby permitting the lab operators to occupy it for extended periods of time without detection.

Law enforcement agents learned of the existence of the methamphetamine lab from David Meyer ("Meyer"), a confidential informant from Minneapolis. In February 1986, agents of the Drug Enforcement Administration ("DEA"), the Louisville Drug Task Force and the Minnesota Bureau of Apprehension engaged in intensive surveillance of the suspected lab operators. On February 28, 1986, investigators conducting air and ground surveillance followed Wolk and Meyer to a manufacturer and distributor of chemical glassware in Louisville. The agents followed Wolk and Meyer to Sears where they picked up dehumidifiers. Wolk and Meyer next led the agents to Spencer's warehouse in Whitley City, Kentucky. Agents conducting drive-by surveillance over the next several days observed Wolk and Blakeney and their respective cars at the lab.

On March 3, 1986, emergency medical treatment attendants responded to a call from Spencer's wife, Alberta Spencer. As the ambulance arrived, a Mercury Cougar sped away. When the attendants entered the Spencers' residence, they found Wolk on the floor of the Spencers' living room. Wolk had died from heart failure as a result of methamphetamine toxicity. It appeared that Wolk died elsewhere and had been dragged to this location. After the ambulance left, Blakeney returned the Mercury Cougar to the Spencers' residence, entered the house and began rummaging through Wolk's suitcase. Later testimony indicated that Blakeney had been with Wolk when he collapsed; he had tried to take Wolk to a doctor; and he had been in the house just prior to the arrival of the attendants. When he appeared at the residence however, Blakeney feigned ignorance of the circumstances of Wolk's death.

On the same day, the agents secured a federal search warrant for the lab based on facts independent of the events surrounding Wolk's death. The agents executed the search on March 5, 1986. They asked Spencer to accompany them to the lab. Spencer used his key to gain access. The agents discovered the methamphetamine lab which fit the confidential informant's description. Chemicals and apparatus for manufacturing methamphetamine were found inside the lab. The agents secured the lab and took an inventory of the apparatus, chemicals and controlled substances that were found. The equipment included seventy two-liter flasks for heating the preparation, ¹ industrial scales and electronic dehumidifiers. These items were suitable for producing large quantities of methamphetamine.

The agents seized hydrogen chloride cylinders which had been purchased from Masterson Gas, ² 13.3 pounds of methamphetamine and 129 gallons of phenylacetone, a quantity that was sufficient to yield approximately one-half ton of methamphetamine.

The agents seized $28,000 in currency from the desk of the office of Spencer's garage. In the attic of the garage, agents found burglary equipment, including an electronic burglar alarm bypass, burglar alarm keys and an athletic bag containing three semiautomatic handguns wrapped in ski masks. ³

In Spencer's residence, agents found a portable two-way radio that was a mate to the one found in the laboratory. Both radios were turned on when they were discovered.

The agents followed the confidential informant's directions and found two storage facilities and an abandoned methamphetamine lab. The agents first travelled to Louisville to the Westport Mini Storage and then to the National Stor-All Mini Warehouse. At the National Stor-All Mini Warehouse, the agents found two fifty-five-gallon drums of phenylacetone in canisters identical to those found at the lab. They next travelled to a log cabin residence in Pleasureville, Kentucky where they found the remains of a methamphetamine laboratory.

3. The Florida Investigation

In August 1989, in the course of investigating a jewelry store robbery, law enforcement officers arrested Blakeney, searched his residence and a warehouse in Boca Raton, Florida.

The search of Blakeney's residence produced a suitcase which contained the following relevant items: documents relating to the production of methamphetamine, including diagrams of chemical equipment, lists of essential ingredients, chemical equipment like that found in the Kentucky lab, lists of foreign providers of chemicals and chemical equipment, receipts for materials found in the Kentucky lab, a book relating to methamphetamine production, a lease for the property in Pleasureville, Kentucky where the agents found the remains of a methamphetamine laboratory, a receipt from the Westport Mini Storage Company on which Wolk's fingerprints were found, a receipt from Ace Glass Company where the glassware found in the lab had been purchased, Spencer's business card, mailing labels for Kutnyak and the recipe Petchen sold to Box, Kutnyak and Wolk...