U.S. v. Clymer

• Citation: 25 F.3d 824
• Decision Date: 02 June 1994
• Docket Number: No. 91-50326,91-50326
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Raoul Barrie CLYMER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 824

25 F.3d 824 UNITED STATES of America, Plaintiff-Appellee,
v.
Raoul Barrie CLYMER, Defendant-Appellant. No. 91-50326. United States Court of Appeals,
Ninth Circuit. Argued and Submitted Oct. 5, 1993.
Decided June 2, 1994.

Page 825

Rebecca Donaldson, San Diego, CA, for defendant-appellant.

D. Thomas Ferraro, Asst. U.S. Atty., San Diego, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California.

Opinion by Judge REINHARDT.

Before: REINHARDT and T.G. NELSON, Circuit Judges, and KAUFMAN, ^* District Judge.

REINHARDT, Circuit Judge:

Once again, we are called upon to review a conviction obtained by the government as a result of its four-year sting operation at the Triple Neck Scientific company in Kearny Mesa, California. See, e.g., United States v. Bruce, 976 F.2d 552 (9th Cir.1992); United States v. Nichols, 956 F.2d 276 (9th Cir.1992) (table); United States v. Allen, 955 F.2d 630 (9th Cir.1992) (per curiam). In exchange for an agreement by the owner of Triple Neck to provide the DEA with information about customers who purchased chemicals and equipment used in the manufacture of methamphetamine, the government purchased advertising to aid the company in generating business, and it allowed the owner to retain all profits he acquired through the sale of methamphetamine precursors. The Triple Neck Scientific operation reportedly led to the indictments of approximately 100 individuals, as well as a $9,000,000 profit for the owner of the company. In Allen, we considered the broad issues of the bounds of permissible government conduct raised by the manner in which the government carried out the sting. Today, however, we focus only on a discrete

Page 826

aspect of the district court proceedings relating to a single defendant.

I.

Although the facts of this case and the various issues raised by the appellant are somewhat complex, we dispose of the case on a narrow ground. Accordingly, we need not discuss the facts and prior proceedings in detail.

Raoul Clymer was a relatively minor figure in the Triple Neck Scientific operation. He was arrested on January 25, 1989. A few days later, on February 3, a grand jury returned a two-count indictment. This indictment charged Clymer--along with Kirk Schlichter, Deborah Miserany, Michael Loughran, and Kenneth Bruce--with one count each of conspiracy to possess methamphetamine with the intent to distribute, see 21 U.S.C. Secs. 841(a)(1) & 846, and possession of methamphetamine with the intent to distribute. See 21 U.S.C. Sec. 841(a)(1). On April 28, 1989, the grand jury returned a six-count superseding indictment against the same five defendants. Count One charged Clymer and his four co-defendants with conspiracy to manufacture and possess methamphetamine with the intent to distribute. Counts Two and Three charged the defendants with manufacturing and attempting to manufacture methamphetamine. Counts Four and Five alleged that all five defendants had possessed methamphetamine with the intent to distribute. (Clymer was not named in Count Six, which charged Miserany, Loughran, and Bruce with the use of a firearm during a drug trafficking offense).

The pretrial proceedings were marked by extensive delays. In 1989, the principal causes of these delays were the pendency of numerous pretrial motions, and a two-month discovery hiatus imposed by the district court at the government's request. On November 20, 1989, after the district court had set and vacated the trial date on at least three occasions, the court scheduled a new trial date for January 9, 1990, more than eleven months after the grand jury returned the original indictment.

However, the trial did not begin on January 9. Instead, on that date Clymer's co-defendants Schlichter and Loughran entered into plea agreements. His other two co-defendants, Miserany and Bruce, entered into plea agreements the next day. At the hearing on January 8, the Assistant United States Attorney offered Clymer the same plea bargain he offered to Schlichter: if Clymer pled guilty to conspiracy, which carried a maximum sentence of four years, the government would dismiss the remaining counts in the indictment. The prosecutor announced his intention to seek an enhanced penalty if Clymer did not agree:

If the defendant decides to proceed to trial, your honor, I have an information. I won't file it at this time. But I have an information giving the defendant notice that the government intends to seek enhanced penalties for the fact that the defendant has a prior drug conviction. Minimum mandatory imprisonment would be 20 years, maximum life, a million dollar fine, and 10 years supervised release.

Despite the indication that he would serve a minimum of twenty years if he went to trial, as opposed to the four he would serve if he entered into the agreement, Clymer rejected the plea bargain and decided to challenge the government's charges at trial. He also moved to relieve his counsel. The district court granted this motion and appointed a new attorney to assist Clymer.

On March 5, 1990, the district court disposed of all of Clymer's pending motions except for his motion to dismiss for outrageous government conduct. The court continued the latter motion (and Clymer's new theories of grand jury perjury and government misconduct, which he expressed orally at the March 5 hearing) until after the trial. As the Assistant United States Attorney had promised during the plea negotiations, the government on May 2, 1990, filed an information seeking enhanced penalties pursuant to 21 U.S.C. Sec. 851. On May 15, Clymer was arraigned on this information, and the district court granted Clymer's motion to proceed pro se and continued the trial until June 5. Largely because Clymer had difficulty preparing for his trial as an incarcerated pro

Page 827

se litigant, the district court re-set the trial for June 26 and then July 10.

The trial finally commenced on July 10, 1990. On July 26, the jury returned a verdict. It found Clymer guilty of conspiracy as charged in Count One and of aiding and abetting the manufacture and attempted manufacture of methamphetamine, as charged in Count Two. However, it acquitted him of all of the other charges in the indictment. After numerous post-trial motions, Clymer was sentenced on April 19, 1991, to twenty years imprisonment and ten years of supervised release.

Clymer filed a timely notice of appeal on April 24, 1991. Because of a series of court reporter delays and failures of court-appointed counsel to prosecute this appeal, Clymer moved to relieve his appellate attorney and proceed pro se. Although we granted the motion, Clymer had difficulty preparing his appellate brief, and we appointed new counsel on November 9, 1992. Clymer's new (and last) attorney filed an opening brief on April 21, 1993. Oral argument was held on October 5 of that year.

The district court had jurisdiction pursuant to 18 U.S.C. Sec. 3231, and we have jurisdiction pursuant to 28 U.S.C. Sec. 1291. Because Clymer had been incarcerated throughout the extraordinary delay that accompanied both his trial and his appeal, and had served almost five years by the time of oral argument, we ordered him released shortly thereafter. We now reverse.

II.

Clymer raises an impressive number of claims on this appeal. Although we believe it likely that many of these claims have merit, we find one dispositive. Accordingly, we need not reach the others. We agree with Clymer that the district court erred in denying his motion to dismiss the indictment for violation of the Speedy Trial Act, 18 U.S.C....