U.S. v. Carroll, s. 91-3079

• Decision Date: 09 November 1993
• Docket Number: 91-3188,Nos. 91-3079,s. 91-3079
• Citation: 6 F.3d 735
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Larry Joe CARROLL, Defendant-Appellee; UNITED STATES of America, Plaintiff-Appellant, Cross-Appellee, v. Thomas SPIKER, Dorlis Spiker, Larry Joe Carroll, Michael Spiker, Defendants-Appellees, Cross-Appellants, Larry Jessee, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 735

6 F.3d 735

UNITED STATES of America, Plaintiff-Appellant, v. Larry Joe CARROLL, Defendant-Appellee;

UNITED STATES of America, Plaintiff-Appellant, Cross-Appellee, v. Thomas SPIKER, Dorlis Spiker, Larry Joe Carroll, Michael

Spiker, Defendants-Appellees, Cross-Appellants,

Larry Jessee, Defendant-Appellant.

Nos. 91-3079, 91-3188.

United States Court of Appeals, Eleventh Circuit.

Nov. 9, 1993.

John H. Bothwell, III, Tampa, FL, for Dorlis Spiker.

Jack T. Edmund, Ft. Meade, FL, for Thomas Spiker.

Nestor Castillo, Jr., Tampa, FL, for Larry Joe Carroll.

Phillip E. Kuhn, Lakeland, FL, for Michael Spiker.

Shawn A. Burklin, Clearwater, FL, for Larry Jesse.

Tamra Phipps, Edmund W. Searby, James C. Preston, Asst. U.S. Attys., Tampa, FL, for U.S.

Appeals from the United States District Court for the Middle District of Florida.

Before TJOFLAT, Chief Judge, CARNES, Circuit Judge, and BRIGHT ^*, Senior Circuit Judge.

CARNES, Circuit Judge:

This case involves convictions arising out of a conspiracy to manufacture and possess with intent to distribute methamphetamine. A jury convicted the defendants on various counts of a multicount indictment. The Government has appealed from the district court's entry of a judgment of acquittal on the conspiracy conviction of one defendant and the court's imposition of sentence for all the defendants, and the defendants have cross-appealed their convictions and sentences. ¹ Of the many issues raised in the appeal and cross-appeals, we find that only three, all sentencing issues, warrant discussion. For reasons we will explain, we reverse the district court's decision to credit Dorlis Spiker, Michael Spiker, and Thomas Spiker with reductions for acceptance of responsibility; we affirm the court's determination of the drug quantity involved in this conspiracy for purposes of sentencing; and we reverse the court's determination that "Pure Methamphetamine" as used in the Sentencing Guidelines refers only to D-methamphetamine. In all other respects, the convictions and sentences are due to be affirmed.

I. BACKGROUND

In November 1989, representatives of the Eastman Kodak Company ("Kodak") notified the Drug Enforcement Agency ("DEA") that Kodak had received a suspicious order for chemicals from a company called "All American Labs" in Winter Haven, Florida. An investigation revealed that there was no such company at the address listed on the purchase order presented to Kodak; rather, at that location was a store called "Spiker's All American 4X4," which sold automotive parts and accessories. Michael Spiker, Larry Jessee, and Larry Joe Carroll all worked at the store, Spiker as manager.

The DEA began an investigation of "Spiker's All American 4X4," which included surveillance of the store and of three different deliveries of chemicals by Kodak to "All American Labs" at the address of "Spiker's All American 4X4" from November 1989 to May 1990. These orders were placed under a false name, using purchase order forms from "Spiker's All American 4X4" that had been altered to read "All American Labs." The chemicals ordered by the bogus "All American Labs" included phenylacetic acid, acetic anhydride, and sodium acetate, which when properly combined create phenylacetone, or "P-2-P," a Schedule II controlled substance and an immediate precursor to methamphetamine. See 21 C.F.R. Sec. 1308.12(g)(1)(i). The DEA's investigation and surveillance of the defendants included court-ordered electronic tracking devices placed in the drums of chemicals delivered by Kodak, and both still and video photography. At trial, the Government introduced photographic evidence of Michael Spiker, Larry Joe Carroll, and Larry Jessee unloading and loading the chemicals. The altered purchase orders instructed that deliveries were to be made to the attention of "Michael/Larry." The Government introduced evidence to show that these chemicals were not part of the retail business conducted by "Spiker's All American 4X4," were not typical of the deliveries received at the store, and once received were placed in a storage shed at the rear of the store which was not used for store inventory. In addition, the Government's evidence showed that Thomas Spiker, who was not an employee of the store at the time, was allowed to remove the chemicals from the store soon after their delivery. Furthermore, the evidence established that Thomas Spiker and Dorlis Spiker recruited John Booth to be their "cook," or "chemist," and to help them in the manufacture of methamphetamine with the chemicals that had been ordered and delivered. ² Booth helped Thomas Spiker determine which chemicals to order and in what quantities to order them. Booth set up a clandestine laboratory in a trailer in a remote area and, using the chemicals provided by Thomas Spiker, produced approximately 31 grams of DL-methamphetamine.

On May 24, 1990, Thomas and Dorlis Spiker were followed by DEA agents to Booth's home, where Booth delivered to them approximately 28 grams of the methamphetamine he had produced. Thomas and Dorlis Spiker were arrested upon leaving Booth's home, and the methamphetamine was found in Dorlis's purse. Booth was arrested in his home later that evening, and a search of his home, pursuant to a warrant, led to the seizure of several drums of chemicals, including one in which the DEA had placed a tracking device prior to its delivery by Kodak. The following day, the DEA searched a mobile home where Thomas Spiker had previously stored the chemicals and recovered business cards printed with "All American Labs" and the "Spiker's All American 4X4" address; copies of purchase order forms sent to Kodak; a laboratory products catalog with Thomas Spiker's handwriting on the front; and a list of chemicals needed for the manufacture of methamphetamine written by John Booth.

The DEA's investigation led to a seven-count indictment charging the defendants and others who are not parties to this appeal with conspiring to manufacture and possess with intent to distribute 100 grams or more of methamphetamine in violation of 21 U.S.C. Secs. 841(a)(1) and 846, and other crimes. ³

II. DISCUSSION

A. Reduction for Acceptance of Responsibility

The Government has appealed the district court's action at sentencing in crediting Thomas Spiker, Michael Spiker, and Dorlis Spiker each with a reduction of their offense levels for acceptance of responsibility under U.S.S.G. Sec. 3E1.1(a). That Guidelines section provides that a defendant who "clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct" may receive a two-level decrease in his offense level. U.S.S.G. Sec. 3E1.1(a) (November 1, 1990). ⁴ We review the district court's determination under Sec. 3E1.1(a) for clear error. United States v. Query, 928 F.2d 383, 386 (11th Cir.1991). We have stated numerous times that "[t]he district court is in a unique position to evaluate whether a defendant has accepted responsibility for his acts, and this determination is entitled to great deference on review." United States v. Pritchett, 908 F.2d 816, 824 (11th Cir.1990). Nonetheless, in this case we conclude that the district court's determination that these defendants had clearly demonstrated acceptance of responsibility for their crimes is without foundation and, therefore, must be reversed. SeeUnited States v. Marin, 916 F.2d 1536, 1538 (11th Cir.1990) (district court's Sec. 3E1.1 determination not disturbed unless without foundation).

1. The Reductions for Thomas and Michael Spiker

At sentencing, the district court explained its two-point acceptance of responsibility reductions for both Thomas Spiker and Michael Spiker in the same way, stating:

[A]lthough defendant has exercised his Fifth Amendment rights to not incriminate himself, he has otherwise co-operated fully at all phases of the trial and sentencing process, including meeting all conditions of pre-trial release and voluntarily surrendering to the U.S. Marshal as ordered. Defendant has never denied his participation in this offense other than through his entry of the Not Guilty plea and this Court is of the opinion that to penalize him for failure to waive his Fifth Amendment rights would result in a denial of fundamental constitutional rights.

The Government objected to the reductions for Thomas and Michael Spiker in the district court and argues on appeal that the court's action was "tantamount to rewarding them for not disrupting court proceedings." We agree. The relevant Sentencing Guidelines commentary provides that "[t]his adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse." U.S.S.G. Sec. 3E1.1, comment. (n. 2). In this case, Thomas and Michael Spiker never admitted guilt nor expressed any remorse for their offenses, and the district court's reliance on concerns for their Fifth Amendment rights for its award of Sec. 3E1.1 reductions was clear error.

In United States v. Henry, 883 F.2d 1010, 1011 (11th Cir.1989), this Court held that conditioning sentence reductions on a defendant's acceptance of responsibility does not violate the Fifth Amendment merely because such reductions likely will be unavailable to defendants who choose to exercise their Fifth Amendment rights. Henry appealed his sentence contending that because he had chosen to testify to his innocence at trial, in order to receive a lower sentence, he was faced with the necessity of having to build a perjury case against himself by confessing at the sentencing hearing to that which he had denied under oath at trial. Henry argued that "because a defendant, believing in his innocence but fearing conviction, might reasonably forego taking the stand to take advantage of the acceptance of responsibility provision without subjecting himself to a perjury charge[,] ... [Sec....