U.S. v. Brown
| Decision Date | 29 August 2006 |
| Docket Number | No. 05-3428.,No. 05-3296.,No. 05-3456.,05-3296.,05-3428.,05-3456. |
| Citation | 461 F.3d 1062 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Maynard F. BROWN, Defendant-Appellant. United States of America Plaintiff-Appellee, v. David L. Deputy, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Monty Camden, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Before ARNOLD, JOHN R. GIBSON, and SMITH, Circuit Judges.
Maynard Brown, David Deputy, and Monty Camden were among nineteen defendants who were charged in a forty-nine count indictment that arose from the alleged diversion of pseudoephedrine by businesses in and around Forsyth, Missouri to individuals who used the pseudoephedrine to manufacture methamphetamine. Deputy appeals from his conviction following a jury trial, Brown appeals from the sentence imposed following his guilty plea, and Camden appeals from the denial of his motion to quash and to suppress evidence that preceded his conditional guilty plea. We affirm.
Deputy operated three related businesses from the same warehouse building in Forsyth, Missouri. The Castle was a retail operation that primarily sold drug paraphernalia items, and it was the focus of the two-year undercover investigation that concluded with these indictments. D & D Distributors was an entity Deputy formed for the purpose of obtaining a federal Drug Enforcement Administration license to distribute, on a wholesale level, products containing pseudoephedrine, ephedrine, and phenylpropanolamine. D & D supplied the pseudoephedrine pills that were purchased and found at The Castle during the investigation. Between May of 2000 and August of 2002, D & D ordered 5,142,528 pseudoephedrine pills. The third business, D-Mart, sold pseudoephedrine pills to Deputy's customers who wanted to purchase more than the maximum number of pills allowed by the DEA without a record being made of the sale.
When Deputy applied for the DEA license in 1999, the agency assigned a diversion investigator to review the application, meet with Deputy, and inspect the location in which the products were to be handled and stored. Deputy's application listed five convenience stores to which he intended to distribute the products, and he represented to the investigator that he expected sales of these products to make up less than ten percent of his total sales. The investigator saw no items of drug paraphernalia during her inspection of Deputy's building, and Deputy did not volunteer that he was planning to sell such items along with pseudoephedrine. The agency approved the application and issued the license.
The DEA investigator provided Deputy with copies of notices that informed him that pseudoephedrine is used illicitly to manufacture methamphetamine and advised him how to identify people who might be buying the product for that purpose. She also gave him a chart that listed the maximum number of pseudoephedrine pills that a distributor could sell in a month's time to individuals and to retailers without reporting the sale to the DEA. The DEA has no threshold requirement that limits how much pseudoephedrine a distributor is permitted to sell; its requirements address only record-keeping and reporting.
In 2002, the DEA was scheduled to return to D & D to verify that it was meeting the legal requirements of the distributing license it held. However, the investigator learned that D & D was the subject of an ongoing criminal investigation and refrained from its regulatory inspection so as not to interfere. At the conclusion of the criminal investigation, the DEA gave Deputy the opportunity to surrender his license, and he did so.
The criminal investigation, which continued for nearly two years, was conducted by the COMET drug task force, or the Combined Ozarks Multi-jurisdictional Enforcement Team. Having received information that The Castle was selling large quantities of pseudoephedrine pills, members of the task force visited the business on October 25, 2001. They observed that The Castle was selling a variety of items including drug paraphernalia, plastic baggies commonly used for packaging controlled substances, smoking pipes, scales, urine test cleansing kits, knives, and pornography, along with pseudoephedrine. The Castle was identified as a head shop, a business that primarily sells drug paraphernalia. However, it also sold World War II memorabilia, including Russian army gas masks.
The officers purchased large amounts of pseudoephedrine at The Castle through more than a dozen undercover purchases. During these sales, Deputy often spoke of the limit on the number of pseudoephedrine pills that he could sell to an individual and expressed his preference for staying under the DEA reporting limit. He would also tell customers that he would not remember them if they returned the following day, thereby allowing the customers to purchase another month's limit of pills. He assured customers that the pills he sold were not wax coated and would dissolve easily. In addition, officers conducted trash pulls of the dumpster located on the south side of The Castle's parking lot and retrieved large numbers of empty blister packs of pseudoephedrine with all the pills having been removed. According to a member of the task force, this commonly occurs to allow all the pills to be gathered in a single container as is necessary to cook methamphetamine. The dumpster also contained several envelopes which bore the words "pseudo pull" along with a dollar amount and a date, and bank deposit slips for The Castle.
The officers executed a federal search warrant for The Castle on October 17, 2002. During the search they seized approximately 460,000 pseudoephedrine pills with a note on the boxes indicating that they were waiting for a shipment back to Lannett, the drug manufacturer. The officers also learned that Deputy ran his three businesses out of this location: The Castle, D & D Distribution, and D-Mart. Records relating to D & D indicated that it was distributing pseudoephedrine to locations throughout southwest Missouri and northern Arkansas, including a laundromat and other head shops. Larry Crow was D & D's main salesperson.
D-Mart was located in the warehouse that housed Deputy's other businesses, but D-Mart had a separate entrance. Once certain customers purchased the limit of pills at The Castle (meaning below the reporting requirement), Deputy would advise them that they could exit the store and buy the limit again at D-Mart.
During the search, agents found a January 16, 2002 letter from the DEA advising Deputy that Missouri law forbids retail stores from selling more than the equivalent of three boxes of pseudoephedrine pills to a customer. They also discovered a May 23, 2000 agreement with Lannett, signed by Deputy, which limited the sale of its pseudoephedrine to 144 boxes per customer per month. According to Crow, Deputy told him he could sell up to four cases of pseudoephedrine per month per store, with each case consisting of 144 boxes of 48 pills, but he was to put each case on a separate invoice. Deputy told Crow he could sell one person more than four cases so long as the person had more than one business that could make separate purchases. Crow also testified that he prepared false invoices at Deputy's direction for pseudoephedrine sales to a business named Good Earth Industries, but Deputy actually kept those pills for extra inventory.
One of the stores to which Crow sold pseudoephedrine was the Hilltop Store located in Isabella, Missouri, and operated by Maynard Brown. Members of the drug task force obtained a search warrant for the store and for Brown's residence and executed it on March 29, 2003. Brown was arrested the following day. Within days after his arrest, Brown threatened his relative and former employee, Missy Reichert, who was cooperating with the investigation. Six months later, Brown placed a message on a sign outside of his store that said, Missy Reichert's husband is named Tony. Brown also followed the off-duty vehicle of an Ozark County deputy sheriff who had helped to obtain and execute the search warrant of his property. When the officer stopped Brown and asked why he was following him, Brown replied that he wanted the officer "to see what it felt like."
The investigation also revealed information that Brown distributed some of the pseudoephedrine he purchased to Monty Camden, who in turn provided it to others who used it to manufacture methamphetamine. Camden then brought methamphetamine back to Brown to sell at the Hilltop Store. An Ozark County narcotics investigator learned that heavy traffic frequented Camden's home, which was located on a rural road, and that Camden had recently had plumbers working to replace some pipes that had been burned out by heavy acid. Based on this information, the investigator attempted to visit Camden in his home to tell him that he suspected illegal activity and to ask for consent to search the property. When he arrived at the property, he first knocked on the door of the main house. Getting no answer, he continued around the house to a cabin. He...
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