U.S. v. Dickey, 95-40752

• Decision Date: 13 December 1996
• Docket Number: No. 95-40752,95-40752
• Citation: 102 F.3d 157
• Parties: 46 Fed. R. Evid. Serv. 172 UNITED STATES of America, Plaintiff-Appellee, v. Larry Wilson DICKEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 157

102 F.3d 157

46 Fed. R. Evid. Serv. 172

UNITED STATES of America, Plaintiff-Appellee, v. Larry Wilson DICKEY, Defendant-Appellant.

No. 95-40752.

United States Court of Appeals Fifth Circuit.

Dec. 13, 1996.

Paula Camille Offenhauser, Katherine L. Haden, U.S. Attorney's Office, Houston, TX, for plaintiff-appellee.

Richelieu Edward Wheelan, Houston, TX, for defendant-appellant.

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

Before REYNALDO G. GARZA, JONES and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

Larry Wilson Dickey appeals his convictions for manufacturing methamphetamine and firearm violations. Applying the recent Supreme Court decision in Bailey v. United States, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), we find the evidence insufficient to support his firearms conviction under 18 U.S.C. § 924(c)(1) and reverse the two convictions under that statute. Finding

no other reversible error, we affirm all other convictions and sentences.

BACKGROUND

In June 1994 the Galveston County Narcotics Task Force received an anonymous tip through Houston Crime Stoppers that Dickey was illegally manufacturing methamphetamine. Sergeant Randall Burrows, a Galveston County Sheriff's Deputy assigned to the Narcotics Task Force, went to Dickey's homes ¹ at 11:00 p.m. that evening. As Sergeant Burrows walked around the house and trailer, he detected a chemical odor that is normally emitted from methamphetamine laboratories.

Sergeant Burrows then left Dickey's residence and phoned a Drug Enforcement Administration ("DEA") agent, who later joined him at Dickey's at 1:00 a.m. The agents did not detect the chemical odor this time. The agents set up a surveillance of Dickey's house and around 11:00 p.m. the next day they saw a pickup truck parked outside the house. Several plastic garbage bags were in the bed of the truck. The truck left the house five minutes later and they followed it. The truck was stopped and its driver was identified as Joseph Kelly Weber, Dickey's half-brother.

With Weber's consent, the agents examined the garbage bags and found empty chemical containers, including an empty bottle of muriatic acid, a chemical commonly used in clandestine labs. The agents also found filter paper that had a strong residue associated with methamphetamine, empty acid containers and broken glassware. The agents further found a box in the bed of the truck containing trash that had a chemical residue. Weber explained that Dickey had asked him to dispose of the garbage bags. ² The agents then obtained a search warrant.

Before the warrant was executed, a cooperating individual lured Dickey away from his house so agents could arrest him off the premises. The agents then entered and searched the house and trailer. The trailer contained a methamphetamine manufacturing laboratory. In the laboratory were numerous chemicals used to manufacture methamphetamine, as well as laboratory glassware and equipment. The laboratory also contained nicotinamide and inosito, dilutants used to cut methamphetamine. The agents found various stages of the methamphetamine manufacturing process occurring in the trailer. For example, three jugs of methamphetamine reaction intermediate were in the freezer. Reaction intermediate is a crystalline substance which, when mixed with a solvent and several other ingredients, produces phenyl-2-propanol ("P2P"), a Schedule I controlled substance. P2P is treated with other chemicals to make methamphetamine. Many flasks in the laboratory contained P2P at various stages of the chemical process. The agents recovered 3.35 kilograms of P2P, 570.5 grams of methamphetamine ³ and 11.79 grams of amphetamine from the laboratory. Based on the amount of chemicals and equipment, Dickey was capable of producing 23.5 kilograms of methamphetamine in his laboratory.

Several firearms were found in the house and trailer. An UZI nine millimeter rifle with a 12-inch barrel ⁴ was found on the bed near a shaving kit containing methamphetamine in the bedroom of the trailer. The agents found a disassembled AMT .380 caliber pistol in the closet. Also found in the bedroom of the trailer were: (1) a Colt .25 caliber semiautomatic pistol; (2) an FEG nine millimeter semiautomatic pistol; and (3) a Mossberg 20-gauge pump shotgun with a short barrel. In the laboratory part of the trailer the agents found a Glock pistol. In the house, the agents found an AA ARMS Dickey was indicted in a six count indictment and charged with: Count 1--Aiding and abetting in the manufacture of methamphetamine in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1) and (b)(1)(A); Count 2--Aiding and abetting the possession with intent to distribute methamphetamine in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1) and (b)(1)(A); Count 3--Being a felon in possession of firearms in violation of 18 U.S.C. § 922(g)(1) and 924(a)(2); Counts 4 and 5--Two counts of carrying or using a firearm during a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1) and 21 U.S.C. § 841(a)(1); and Count 6--Possession of an unregistered firearm in violation of 26 U.S.C. §§ 5841, 5845, 5861(d) and 5871.

nine millimeter pistol on top of the refrigerator. With the exception of the AMT pistol, all firearms were loaded and operational.

A jury found Dickey guilty of all counts in the indictment and the district court sentenced him to life in prison on counts one and two and 120 months in prison on counts three and six, all to be served concurrently. The district court also sentenced Dickey to 120 months on count four and 60 months on count five, to be served concurrent to each other but consecutive to the terms on the other counts. Dickey filed a timely notice of appeal.

DISCUSSION

Search Warrant

Dickey contends that the affidavit supporting the search warrant was insufficient to establish probable cause because Sergeant Burrows' summary of Weber's statements was in reckless disregard for the truth. Dickey also argues that the district court erred in denying his request for an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), and for failing to suppress the evidence found in the illegal search of his home.

In his affidavit supporting the search warrant, Sergeant Burrows stated that "Weber advised that his half brother, Larry Wilson Dickey, asked him to dispose of the bags which contained garbage. Dickey and Weber loaded the garbage into Weber's vehicle." Sergeant Burrows further stated that:

Weber advised that he knew that Larry Wilson Dickey illegally manufactured Methamphetamine and when he arrived at 1111 9th Street, San Leon, he smelled an odor which he recognized as being associated with the manufacture of Methamphetamine inside the residence. Weber contacted Larry Wilson Dickey by phone inside the residence at 1118 8th Street, San Leon. Dickey invited Weber into 1118 8th Street and Weber detected the same odor inside this residence. Weber advised that the odor was so strong that it burned his eyes and he had to leave the residence.

Before trial, Dickey filed a motion to suppress evidence. Attached to his motion was Weber's affidavit, which contradicted Sergeant Burrows' statements. Weber stated that:

Almost all of the statements attributed to me in [Sergeant Burrows'] affidavit were never made by me. Specifically, I never told officers that I recognized the smell of methamphetamine in my brother's house. When asked if I noticed a smell in his house, I said yes, but I did not state that it was the smell of methamphetamine. Nor did I tell the officers that the smell burned my eyes so badly that I had to leave the house. In fact, I went to my brother's house to pick up a hunting rifle to take to San Antonio with me because I intended to leave the next morning to visit my mother there. I spent about two to three hours at my brother's house before the agents stopped me that night.

Finally, I did not tell the agents, as alleged in Sgt. Burows' [sic] affidavit, that I went to 1111 9th. Street, San Leon, smelled an odor of methamphetamine, and contacted my brother by phone at 1118 8th. Street, whereupon I was invited into 1118 8th. Street. I simply drove up to my brother's house that night and knocked on the door and entered.

A defendant is entitled to an evidentiary hearing on a motion to suppress evidence if he shows that: (1) allegations in a supporting affidavit were a deliberate falsehood Therefore, we must consider the unchallenged portion of the affidavit and determine whether probable cause exists. We evaluate probable cause under a totality of the circumstances test. United States v. Cherry, 50 F.3d 338, 341 (5th Cir.1995). An affidavit may form the basis for the issuance of a search warrant if "the magistrate was provided with sufficient reliable information from which he could reasonably conclude that the items sought in the warrant were probably at the location sought to be searched." United States v. Wake, 948 F.2d 1422, 1428 (5th Cir.1991) (internal quotation and citation omitted), cert. denied, 504 U.S. 975, 112 S.Ct. 2944, 119 L.Ed.2d 569 (1992).

or made with a reckless disregard for the truth and (2) the remaining portion of the affidavit is not sufficient to support a finding of probable cause. Franks, 438 U.S. at 171, 98 S.Ct. at 2684. "Even if the defendant makes a showing of deliberate falsity or reckless disregard for the truth by law enforcement officers, he is not entitled to a hearing if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause. United States v. Privette, 947 F.2d 1259, 1261 (5th Cir.1991) (citing Franks, 438 U.S. at 171-72, 98 S.Ct. at 2684-85) (quotation marks omitted), cert. denied, 503 U.S. 912, 112 S.Ct. 1279, 117 L.Ed.2d 505 (1992).

We review de novo the denial of a...