U.S. v. Eddy, s. 76-2375

• Decision Date: 22 December 1976
• Docket Number: Nos. 76-2375,76-2338,s. 76-2375
• Citation: 549 F.2d 108
• Parties: UNITED STATES of America, Appellee, v. Frances Louise EDDY, Appellant. UNITED STATES of America, Appellee, v. Paul Matthew BONANNO, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 108

549 F.2d 108

UNITED STATES of America, Appellee, v. Frances Louise EDDY, Appellant.

UNITED STATES of America, Appellee, v. Paul Matthew BONANNO, Appellant.

Nos. 76-2375, 76-2338.

United States Court of Appeals, Ninth Circuit.

Dec. 22, 1976.

Peter B. Clarke, of Deutsch, Parziale & McCabe, San Diego, Cal., for appellant in No. 76-2375.

Anthony S. Deutsch, of Deutsch, Parziale & McCabe, San Diego, Cal., for appellant in No. 76-2338.

Daniel K. Green, Asst. U.S. Atty., on the brief, Terry J. Knoepp, U.S. Atty., San Diego, Cal., for plaintiff-appellee.

Before GOODWIN and WALLACE, Circuit Judges, and INGRAM, ^* District Judge.

GOODWIN, Circuit Judge:

Paul Bonanno and Frances Eddy appeal their convictions for conspiracy to violate the Controlled Substance Act ¹ and for unlawful distribution of methamphetamine powder. Bonanno also appeals from a related conviction for unlawful possession of a firearm during the commission of a felony. ²

Both defendants challenge the sufficiency of the evidence. They contend further that the indictment was defective because the Attorney General failed to adhere to the republication requirement of 21 U.S.C. § 812(a). Finally, Eddy argues that she was arrested without probable cause and that the failure of the government to furnish copies of certain postarrest statements violated Fed.R.Crim.P. 16(a) and prejudiced her sufficiently to require a new trial.

The convictions stemmed from the efforts of Gary Gleason, an undercover agent, to buy methamphetamine powder on two occasions. The distribution counts stemmed from the first and the conspiracy counts from the second.

The first buy was made on December 10, 1975. Gleason met Camelia Ann Lynn and her husband Richard Lynn in Room 60 of the Saratoga Hotel in San Diego, and arranged with them to buy an ounce of methamphetamine powder. He drove them to an intersection in San Diego where Mrs. Lynn left the car, saying that she was going to talk to her connection. Mrs. Lynn went to the apartment in which Bonanno and Eddy were living, told them of Gleason's request, and was told that they could get an ounce of speed. Bonanno then left the apartment, went outside, and looked carefully for several minutes at all the vehicles passing on the street. He was observed by Joseph Dorsey, a plainclothed policeman.

When Mrs. Lynn returned to the car she told Gleason that her source, whose name was Fran, was nervous. She told him to wait, and left again. Soon, Bonanno and another man approached the car and began whispering with Mr. Lynn, who had been waiting with Gleason. Lynn said later that Bonanno was checking out Gleason to see if he was "cool".

Mrs. Lynn returned shortly with about one quarter of an ounce of methamphetamine powder. She told Gleason she would have to get the remaining three quarters of an ounce from the laboratory and that he should return to the Saratoga to wait for word. He paid her $250, and left with Mr. Lynn. Mrs. Lynn went to the bank with Eddy, changed the bills for others of different denominations, and gave the money to Eddy.

The remainder of the methamphetamine was delivered later that day. Gleason returned with Mr. Lynn to the same intersection. Mr. Lynn left the car and soon returned with a bag of methamphetamine. Gleason gave him $650 and Mr. Lynn left again, returning this time with Mrs. Lynn and a final bag of methamphetamine powder. At trial, Mrs. Lynn testified that she received the first portion of the methamphetamine from Eddy and the last portion from Bonanno.

The second buy was negotiated and was to have occurred on January 12, 1976. As before, Gleason met the Lynns at Room 60 of the Saratoga. The Lynns agreed to arrange the sale of one-half pound of methamphetamine for $5,600. During this conversation the Lynns referred to their connections as "Paul" and "Fran". A discussion of delivery logistics ensued, during which Mrs. Lynn left the room to confer with Paul and Fran. It was agreed that the transaction would be consummated, using the Lynns as intermediaries, at a parking lot some distance away, and Gleason gave Mrs. Lynn a marked ten-dollar bill for cab fare for Paul and Fran, who did not want to meet him or ride with him.

Gleason and the Lynns drove to the parking lot in Gleason's car. When they arrived, Mrs. Lynn asked for the money, indicating that she would return with the drug. At this point, Gleason gave the arrest signal and arrested both Lynns.

About five minutes after Gleason left the Saratoga, Eddy and Bonanno, under surveillance by Dorsey, left the hotel and got in a taxi. The taxi let them out one block from the parking lot. As they were walking toward it, Dorsey arrested them. After the arrest a loaded, stockless, semi-automatic shotgun was discovered concealed on Bonanno's person and the marked ten-dollar bill was recovered from Eddy's purse. Records of the Saratoga Hotel indicated that Room 54 was rented by Paul Bonanno.

I. SUFFICIENCY OF THE EVIDENCE

Once the existence of a conspiracy has been established, only slight evidence is required to connect a defendant with it. United States v. Knight, 416 F.2d 1181, 1184 (9th Cir. 1969). Here there is substantial evidence of a conspiracy to sell methamphetamine through a distribution chain from "the laboratory" through "Paul and Fran" to the Lynns. Bonanno and Eddy assert that the evidence does not allow an inference that they were the Paul and Fran in question.

Apart from Mrs. Lynn's identification of them, and apart from the other evidence of the second buy, testimony indicated that Paul Bonanno and Frances Eddy were Mrs. Lynn's connection. A room was registered to Bonanno in the Saratoga Hotel and the two were in the hotel when the negotiations for the second buy were being conducted. The ten dollars Mrs. Lynn said she was giving her connection for cab fare was discovered in Eddy's purse. Bonanno and Eddy had traveled almost to the rendezvous point from the Saratoga, and Bonanno was carrying a concealed, loaded shotgun when they were arrested. This collocation of circumstances is more than adequate to link the defendants to the established conspiracy. Because the evidence supports Bonanno's conspiracy conviction, we also hold that there was sufficient evidence of the commission of a felony to affirm Bonanno's conviction on the firearms charge.

Bonanno and Eddy also claim that the evidence supporting the distribution counts is insufficient. These counts stemmed from the second buy, on December 11, the day that Mrs. Lynn testified she received methamphetamine from both Bonanno and Eddy. The defendants would have us disregard this testimony because of contradictions within it. The able trial judge was asked to find that Mrs. Lynn's testimony was inherently incredible as a matter of law. He refused, and defendants have pointed to no abuse of discretion in this ruling. The jury evidently believed her testimony. It was enough to convict Bonanno and Eddy.

Finally, Eddy claims there was insufficient evidence that the substance seized was methamphetamine as prohibited by 21 U.S.C. § 812(c), Schedule II, because there was no evidence that it contained a sufficient quantity of the drug to have a measurable physiological effect. She cites no supporting cases, and we have found none. The statute contains no "minimum amount" qualification and we are unwilling to imply one here. See United States v. Nelson, 499 F.2d 965, 966 (8th Cir. 1974). See also Jordan v. United States, 416 F.2d 338 (9th Cir. 1969), cert. denied, 397 U.S. 920, 90 S.Ct. 930, 25 L.Ed.2d 101 (1970).

II. REPUBLICATION REQUIREMENT OF 21 U.S.C. § 812(a)

The defendants argue that the Attorney General failed to republish Schedule II as required by 21 U.S.C. § 812(a). As a consequence of this failure, they argue that the substances listed on Schedule II, including methamphetamine, have ceased to be controlled substances, so the indictment under which the defendants were charged failed to state an offense.

Two district judges in this circuit have recently considered this argument with respect to other drugs, and both have rejected it. United States v. Andrews, 408 F.Supp. 1007 (N.D.Cal.1976); United States v. Monroe, 408 F.Supp. 270 (N.D.Cal.1976). We concur in this result, but reach it by a different route. ³

Section 812(a) of 21 U.S.C. appears in the margin. ⁴ It provides for five schedules of controlled substances to be updated and republished by the Attorney General, initially on a semiannual basis and then annually. Section 812(b) defines the required characteristics for each schedule and section 812(c) designates the initial composition of each schedule. The defendant's argument relies heavily on 21 U.S.C. § 811(a), which prescribes the procedures to be followed by the Attorney General in amending the schedules. ⁵ It explicitly mandates the use of the rulemaking procedures of the Administrative Procedure Act, 5 U.S.C. § 551 et seq., including publication in the Federal Register of any changes in the schedules.

Updated schedules of controlled substances were published in the Federal Register on four occasions, most recently on June 20, 1974. ⁶ They were also republished annually in the Code of Federal Regulations, beginning in 1972. ⁷

Bonanno and Eddy impute the notice requirements of § 811(a) to the chapter as a whole, including § 812(a). They argue that the command of § 812(a) that the schedules "be updated and republished on an annual basis" requires publication in the Federal Register. We find no basis for this contention in either the statutory scheme or the legislative history and hold that the republication requirement of § 812(a) is satisfied by annual publication of the updated schedules in the Code of Federal Regulations.

Section 811 delegates to the Attorney General the authority to promulgate regulations making the unauthorized possession and distribution of certain substances illegal. Because of the serious consequences of such regulations for...